Supreme Court in Lachman Singh -Vrs.- Kirpa Singh and others,
reported in AIR 1987 Supreme Court 1616.
In this judgment it
has been decided that once a property becomes absolute property of a
female Hindu it shall devolve first on her children (including children
of the predeceased son and daughter) as provided in Section 15(1)(a)
of the Act and then on other heirs subject only to the limited change
introduced in Section 15(2) of the Act. It is further decided that the
step sons or step daughters of the female Hindu will come in as heirs
only under Clause (b) of Section 15(2) of the Act.
It is further
observed that the rule of devolution in Section 15 of the Act applies to
all kinds of properties left behind by a female Hindu except those
dealt by Clause (a) and (b) of Section 15(2) which makes a distinction
as regards the property inherited by her from her parents and the
property inherited from her husband or father-in-law and that too
when she leaves no sons and daughters, including children of
predeceased sons and daughters.
In the case at hand, if Lata’s
daughter born to her first husband is considered to be her daughter
coming within the expression ‘daughter’ appearing in Section 15 of
the Act, then sub-section (1) of Section 15 of the Act would govern the
situation. In Lachman Singh’s case (supra), Hon’ble Supreme Court
has observed that the word ‘sons’ in Clause (a) of Section 15(1) of the
Act includes (i) sons born out of the womb of a female by the same
husband or by different husbands including illegitimate sons too in
view of Section 3(j) of the Act and, (ii) adopted sons, who are deemed
to be sons for purposes of inheritance. What has been stated about the expression ‘sons’ in Clause (a) of Section 15(1) of the Act can
equally be stated about the expression ‘daughters’ appearing in
Section 15(1)(a) of the Act.
Therefore, the inevitable conclusion is
that being a daughter born out of the womb of Lata by her first
husband the plaintiff-respondent No.1 comes within the expression
‘daughters’ appearing in Section 15(1)(a) of the Act and with the
application of Rule-1 of Section 16 of the Act, the Appellants, who are
coming within the expression ‘heirs of the husband’, are to be kept
from succeeding to the properties left behind by Lata even though she
inherited the same from her second husband-Kalakar and he is not
the father of plaintiff-respondent No.1.
ORISSA HIGH COURT: CUTTACK
R.S.A. NO.83 OF 2005
Sashidhar Barik Vs Ratnamani Barik and another
PRESENT :
MR. JUSTICE RAGHUBIR DASH
Date of judgment : 19.06.2014
Citation; AIR 2014 Orissa 202
This Second Appeal is against the judgment and decree
dated 18.01.2005 and 31.01.2005, respectively, passed by the
learned District Judge, Keonjhar in R.F.A. No.44 of 2004 confirming
the
judgment
and
decree
dated
29.07.2004
and
13.08.2004,
2
respectively, passed by the learned Civil Judge (Senior Division),
Keonjhar decreeing the plaintiff’s suit bearing T.S. No.53 of 2002.
2.
Respondent No.1-Ratnamani Barik is the plaintiff.
She
filed the suit for declaration and perpetual injunction. The subject
matters of the suit are the properties mentioned in schedule ‘Ga’ and
‘Gha’ of the plaint, hereinafter referred to as the suit properties.
3.
Facts not in dispute are as follows:
One Lata first married to Hrushi, who died prior to 1956
leaving behind his widow (Lata) and daughter Ratnamani (the
plaintiff) as his successors. Ratnamani has got only one daughter,
namely, Banabasi, who is arrayed as defendant No.1 in the suit.
After the death of Hrushi, his widow Lata married to Kalakar, who
also died prior to 1956 leaving behind Lata as his only successor-in-
interest. Kalakar had one brother, namely, Kantha. D-2 to D-12 are
the successors-in-interest of Kantha. Here, it is pertinent to mention
that both the husbands of Lata belong to two of the four branches of
the common ancestor late Ananta Barik. After the death of Kalakar,
his widow Lata filed O.S. No.53 of 1960 and got the share of Kalakar
allotted to her and, getting delivery of possession thereof, she
continued to remain in possession of the same. Plaint schedule ‘Kha’
properties are part of the properties she got in the said partition.
During her life time Lata, for her legal necessity, had sold plaint
schedule ‘Kha’ land to different persons.
However, since those
3
properties are not in dispute, the purchasers thereof have not been
made parties to the suit.
4.
Against the aforestated backdrop, it is the plaintiff’s case
that plaint schedule ‘Ga’ land, which is also a part of the properties
Lata had got in the partition, has been bequeathed by Lata under an
unregistered Will executed in favour of Banabasi (D-1), who is Lata’s
grand-daughter and on the strength of that Will D-1 has been in
possession and enjoyment of schedule ‘Ga’ property. The residue of
the property Lata had got in the partition is the schedule ‘Gha’
property. It is plaintiff’s case that being the natural daughter of Lata
the plaintiff has succeeded to the property in schedule ‘Gha’ in
respect of which Lata has died intestate. After the death of Lata, it is
claimed, plaintiff has been in possession of schedule ‘Gha’ properties.
It is alleged that D-2 to D-12, being agnates of Kalakar (Lata’s second
husband), created disturbance in plaintiff’s possession over the suit
land. Hence, the suit for declaration of her right, title and interest in
respect of schedule ‘Gha’ properties. The plaintiff has also sought for
declaration of her title over schedule ‘Ga’ land in case no title is found
to have passed on to D-1 under the aforestated Will.
5. D-1 filed W.S. supporting plaintiff’s stand.
6. D-2 to D-12 in their joint written statement have
disputed the execution of any Will by Lata in favour of D-1. They also
dispute plaintiff’s claim that she has succeeded to the properties that
4
Lata had got in partition under the decree passed in O.S. No.53 of
1960. They claim that Kalakar, the second husband of Lata, having
died prior to 1956 and the present plaintiff being not the daughter of
Kalakar, the property of Kalakar, which was allotted to Lata, reverts
back to D-2 to D-12 who are, admittedly, the heirs of Kalakar’s elder
brother-Kantha. Their further assertion is that Lata, who was being
taken care of and maintained by D-2 to D-12, has relinquished the
suit properties in favour of D-2 to D-12. They also take the stand
that the Will in question being not genuine, D-1 cannot derive any
title in schedule ‘Ga’ properties on the basis of the Will. D-2 to D-12
claim that they have acquired right, title and interest over the suit
properties by way of reversion.
7.
Learned courts below have recorded concurrent findings
that by operation of Section 14 of the Hindu Succession Act, 1956 (in
short, the Act) Lata became full owner in respect of the property she
got in O.S. No.53 of 1960 and plaintiff being Lata’s natural daughter
through her first husband would succeed to all the properties in
respect of which Lata died intestate, irrespective of the fact that the
source of the property is Lata’s second husband, who is not the father
of the plaintiff.
8.
The
Second
Appeal
is
admitted
on
the
following
substantial question of law:
Whether daughter of the first husband of a
Hindu female inheriting property of her second
5
husband can be taken as ‘daughter’ within the
meaning of Section 15(2)(b) of the Hindu
Succession Act, 1956?
9.
Before entering into the rival contentions of the parties it
is felt useful to reproduce Section 15 of the Act for reference:-
General rules of succession in the case of
female Hindus.- (1)
The property of a female
Hindu dying intestate shall devolve according to
the rules set out in section 16,-
(a)
firstly, upon the sons and daughters
(including the children of any pre-deceased son
or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained
in
sub-section (1),-
(a)
any property inherited by a female Hindu
from her father or mother shall devolve, in the
absence of any son or daughter of the deceased
(including the children of any pre-deceased son
or daughter), not upon the other heirs referred to
6
in sub-section (1) in the order specified therein,
but upon the heirs of the father; and
(b)
any property inherited by a female Hindu
from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of
the deceased (including the children of any pre-
deceased son or daughter) not upon the other
heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the
husband.
10.
Learned counsel for the Appellants argues vehemently,
raising the contention that in view of the principles stipulated in
Section 15(2)(b) of the Act, the suit properties inherited by Lata
having come from the source of her second husband-Kalakar and
both Kalakar and Lata having died without any issue begotten out of
their wedlock, the suit properties would devolve upon the Appellants,
who are undisputedly heirs of late Kalakar.
Learned counsel for the Respondents, on the other hand,
submits that plaintiff-Respondent No.1 being the natural born
daughter of Lata, the property left behind by her is to be succeeded
by her natural born daughter as per the principle laid down in
Section 15(1)(a) of the Act and that the principles contained in
Section 15(2) are not at all attracted.
7
11.
Both sides have cited judgments to support their
respective contentions. In AIR 2003 Gauhati 92 (Smt. Dhanistha
Kalita -Vrs.- Ramakanta Kalita and others), which is relied on by
the Appellants, the question to be determined was whether the
expression “son and daughter” used in clause (b) of Section 15 (2) of
the Act includes the son and daughter of a female Hindu, whom she
had begotten from a husband other than the husband, whose
property she had inherited. Before going to answer the said question,
His Lordship referred to the reasons for incorporating Section 15(2) in
the Act, as assigned by the Joint Committee in Clause 17 of the
Hindu Succession Bill, 1954 which reads as follows:
“While revising the order of succession among
the heirs to a Hindu female, the Joint Committee
have provided that properties inherited by her
from her father reverts to the family of the father
in the absence of issue and similarly property
inherited from her husband or father-in-law
reverts to the heirs of the husband in the
absence of issue. In the opinion of the Joint
Committee such a provision would prevent
properties passing into the hands of persons to
whom justice would demand they should not
pass.”
Thereafter,
His
Lordship
referred
to
the
following
observation of the Hon’ble Apex Court in Bhagat Ram -Vrs.- Teja
Singh, reported in AIR 2002 SC 1:
“The source from which she inherits the property
is always important and that would govern the
situation. Otherwise persons who are not even
remotely related to the person who originally
held the property would acquire rights to inherit
8
that property. That would defeat the intent and
purpose of sub-section (2) of Section 15, which
gives a special pattern of succession.”
and then His Lordship proceed to make the following observation answering
the question in the negative:
“Since the object of S. 15(2) is to ensure that the
property left by a Hindu female does not lose the
real source from where the deceased female had
inherited the property, one has no option but to
hold that son and daughter (including the
children of any predeceased son or daughter) of
such a Hindu female will mean the son or
daughter begotten by the Hindu female from the
husband, whose property she had inherited, and
not the son or daughter whom she had begotten
from a husband other than the one, whose
property she had inherited. If such property is
allowed to be drifted away from the source
through which the deceased female has actually
inherited the property, the object of S. 15(2) will
be defeated. In other words, if such a property is
allowed to be inherited by a son or daughter,
whom the deceased female had begotten not
through her husband, whose property it was, but
from some other husband (whose property it was
not), then S. 15(2)(b) will become meaningless
and redundant.”
12.
On behalf of the Respondent No.1 one judgment of
Himanchal Pradesh High Court reported in AIR 1985 HP 8 (Roshan
Lal and another -Vrs.- Dalipa) has been cited in which an identical
question has been answered in the affirmative.
In that case, the
Respondent was the son of one Pari born during her wedlock with her
first husband Kithu.
Subsequently, after the death of Kithu, Pari
contacted a second marriage with Punnu, who died intestate in 1959
leaving behind Pari. No issue was born during the second marriage
9
of Pari.
The Respondent filed a suit claiming the share of Punnu.
The defendants, who are the collaterals of Punnu, resisted the suit on
the ground, inter alia, that the Respondent being the son of Kithu
could not claim to succeed to the estate of Pari. The High Court of
Himanchal Pradesh held that since the Respondent is found to be the
son of Pari, sub-section (2) of Section 15 of the Act is not attracted in
as much as the said section operates ‘in the absence of any son or
daughter of the deceased’.
It is further observed that for the
purposes of succession to Pari’s estate under Section 15(1)(a) of the
Act it is immaterial whether the Respondent was the off-spring of the
marriage of Pari with Kithu or of her illicit relationship with Punnu.
13.
In Keshri Parmai Lodhi and another -Vrs.- Harprasad
and others, reported in AIR 1971 MP 129, the question to be
answered was whether the word ‘son’ should be restricted to the son
of the husband from whom the Hindu female inherited the property
or it should include sons of the Hindu female irrespective of whether
they are born of the husband whose property is in dispute.
While
answering this question, His Lordship observed that from the
language used in sub-section (1) and (2) of Section 15 of the Act it is
clear that the intention of the Legislature is to allow succession of the
property to the sons and daughters of the Hindu female and only in
the absence of any such heirs the property would go to the husband’s
heirs.
10
In the Text Book : Principles of Hindu Law by D.F. Mulla,
it is commented on Section 15(1)(a) of the Act that in case of a female
intestate who had remarried after the death of her husband or after
divorce her sons by different husbands would all be her natural sons
and entitled to inherit the property left by the female Hindu
regardless of the source of the property.
14.
The Gauhati High Court’s conclusion that son or
daughter of a female will mean the son or daughter begotten by her
from the husband whose property she has inherited, is based on the
observations made by the Hon’ble Apex Court in Bhagat Ram’s case
(supra). This supreme Court judgment has been cited by both the
parties. Learned counsel for the Appellants puts much stress on the
Hon’ble Apex Court’s observation that the source from which the
Hindu female inherits the property is always important, otherwise,
persons who are not even remotely related to the person who
originally held the property would acquire rights to inherit the
property and that would defeat the intent and purpose of sub-section
(2) of Section 15. In my considered view, the said observation of the
Hon’ble Apex Court applies to a situation where the female Hindu has
died intestate leaving behind no issue born from her womb.
15.
Both sides have cited the judgment of the Hon’ble
Supreme Court in Lachman Singh -Vrs.- Kirpa Singh and others,
reported in AIR 1987 Supreme Court 1616.
In this judgment it
11
has been decided that once a property becomes absolute property of a
female Hindu it shall devolve first on her children (including children
of the predeceased son and daughter) as provided in Section 15(1)(a)
of the Act and then on other heirs subject only to the limited change
introduced in Section 15(2) of the Act. It is further decided that the
step sons or step daughters of the female Hindu will come in as heirs
only under Clause (b) of Section 15(2) of the Act.
It is further
observed that the rule of devolution in Section 15 of the Act applies to
all kinds of properties left behind by a female Hindu except those
dealt by Clause (a) and (b) of Section 15(2) which makes a distinction
as regards the property inherited by her from her parents and the
property inherited from her husband or father-in-law and that too
when she leaves no sons and daughters, including children of
predeceased sons and daughters.
In the case at hand, if Lata’s
daughter born to her first husband is considered to be her daughter
coming within the expression ‘daughter’ appearing in Section 15 of
the Act, then sub-section (1) of Section 15 of the Act would govern the
situation. In Lachman Singh’s case (supra), Hon’ble Supreme Court
has observed that the word ‘sons’ in Clause (a) of Section 15(1) of the
Act includes (i) sons born out of the womb of a female by the same
husband or by different husbands including illegitimate sons too in
view of Section 3(j) of the Act and, (ii) adopted sons, who are deemed
to be sons for purposes of inheritance. What has been stated about
12
the expression ‘sons’ in Clause (a) of Section 15(1) of the Act can
equally be stated about the expression ‘daughters’ appearing in
Section 15(1)(a) of the Act.
Therefore, the inevitable conclusion is
that being a daughter born out of the womb of Lata by her first
husband the plaintiff-respondent No.1 comes within the expression
‘daughters’ appearing in Section 15(1)(a) of the Act and with the
application of Rule-1 of Section 16 of the Act, the Appellants, who are
coming within the expression ‘heirs of the husband’, are to be kept
from succeeding to the properties left behind by Lata even though she
inherited the same from her second husband-Kalakar and he is not
the father of plaintiff-respondent No.1.
Therefore, the learned courts below have rightly held that
plaintiff-Ratnamani succeeded to the suit properties consequent upon
the death of her mother Lata and that the Appellants-defendant Nos.2
to 12 are not entitled to inherit the property of Lata.
16.
In the result, the Second Appeal being devoid of merit is
dismissed on contest but in the facts and circumstances without any
cost. The interim order dated 24.10.2005 staying further proceeding
in Execution Case No.26 of 2005 stands vacated.
..............................
R. Dash, J.
Orissa High Court, Cuttack
The 19th June, 2014/D. Aech
No comments:
Post a Comment