Patna High Court
Satyanarain Mahto And Anr. vs Rameshwar Mahto And Ors. on 17 August, 1981
Equivalent citations: AIR1982PAT44, 1982(30)BLJR61, AIR 1982 PATNA 44, (1982) PAT LJR 144, (1982) BLJ 17, (1982) 1 CIVLJ 220, 1982 BBCJ 11, 1982 BLJR 61
JUDGMENT
1. This appeal arises out of a partition suit. Originally, the plaintiffs claimed 1/6th share in the suit property. The suit property is a house in the town of Laheriasarai. One Janki Mahto had three sons, namely, Juri Mahto, Chulhai Mahto and Lakshmi Mahto. The heirs of Juri Mahto are the plaintiffs in this case. Lakshmi Mahto is defendant No. 1 and his two sons, namely, Satyanarain Mahto and Rajendra Mahto are defendants 1/a and 1/b (appellants). Chulhai Mahto died in 1960 leaving behind two daughters, namely, defendants 3 and 4 and a widow who is defendant No. 5. There are two daughters of Janki who are defendants 6 and 7. Defendant No. 2 was Most. Mushni, widow of Janki. Most. Mushni died during the pendency of the suit.
2. Admittedly, there was a partition by a registered deed of partition (Ext. 3) dated 11-7-1950. By this registered partition deed the properties of Janki Mahto were partitioned among Janki Mahto, Juri Mahto, Chulhai Mahto and Lakshmi Mahto. Each got 1/4th share in the joint family property. The house, which is in dispute in the present suit, was allotted to Janki Mahto. Admittedly, Janki Mahto died in the year 1959. Most Mushni was living with him.
After the death of Janki, Most. Mushni executed a registered sale deed (Ext. B2-I) dated 20-11-1963 in favour of defendants 1/a and 1/b (appellants before this Court).
3. On these facts, the court below granted 1/6th share to the plaintiffs, 1/6th to Lakshmi, 1/6th to defendants 3, 4 and 5, 1/6th to defendant No. 6, 1/6th to defendant No. 7 and 1/6th to Most. Mushni. In other words, Janki died leaving behind six heirs, namely, heirs of Chulhai (defendants 3, 4 and 5), Lakshmi (defendant No. 1), plaintiffs Most. Mushni (widow Of Janki), defendant No. 6 (daughter of Janki) and defendant No. 7 (another daughter of Janki). In other words, the court below granted equally 1/6th share, to each of the above-mentioned six sets of heirs of Janki in, the house in question. On these facts, the court below also held , that the sale deed executed by Most. Mushni in favour of defendants 1/a and 1/b is a genuine document and for consideration. It is for this reason that the court below held that the 1/6th share held by Most. Mushni will devolve on defendants 1/a and 1/b (the appellants).
4. Against this judgment, defendants 1/a and 1/b have preferred this appeal to this Court. Learned counsel for the appellants contends that in view of Expln. 2 of Section 6 of the Hindu Succession Act, 1956 (hereinafter to be referred to as 'the Act') Most. Mushni was the sole heir of Janki. In other words, he means to say that the sons, who separated from Janki in 1950, will not be entitled to inherit any share after the death of Janki. According to him, "the only heir of Janki will be Most. Mushni. We are unable to accept his contention. General law of inheritance vis mentioned in Section 8 of the Act. According to Section 8, "the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :-- (a) fiirstly, upon the heirs, being the relatives specified in class I of the Schedule;..." If there exists class I heir of the Schedule, then the property left by the father will equally be inherited by all the heirs mentioned in class I of the Schedule. According to Section 8, the six heirs of Janki will each get 1/6th share in the property left-by him. In other words, his- three sons, his two daughters and Most. Mushni will each get 1/6th share in the property left by, Janki. In other words, the house, which had fallen to the share of Janki, would be equally divided amongst all the six heirs of Janki according to Section 8 of the Act. Section 8 is general in nature. Section 6 of the Act is an exception to Section 8. Section 6 provides that if a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. There is a proviso to Section 6 which provides that the principle of survivorship will not be governed if there is a surviving female relative as specified in class I of the Schedule. If the case comes within the proviso then the interest of the deceased in the Mitakshara coparcenary property shall devolve by intestate succession and not by survivorship. In the present case, learned counsel for the appellants relied upon Expln. 2 to Section 6 which runs as follows:
"Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the inter est referred to therein."
Learned counsel for the appellants contends that in view of the fact that Janki separated from his sons in the year 1950, the sons or their heirs, who had separated, will not be able to claim the share in the property left by Janki after his death. In our opinion, this is not the correct proposition. This point was correctly answered in Ganta Appalanaidu v. Ganta Narayanamma (AIR 1972 Andh Pra 258). Exactly, this was the question raised in that case.
5. We explain this point by giving an illustration. There was a separation between A, the father, and his two sons -- B and C. B completely separated from his "father. After partition, C remained joint with A. After the death of A, C will inherit the property by virtue of Expln. 2. B cannot lay any claim for partition in respect of the property left by A after his death. We give another example. There was a separation among A, B and G. A was the father and B and C were his sons. All the three were living separately. A died leaving behind his widow and two sons -- B and C. B and C along with the widow will be entitled to equal share in view of Section 8 of the Act.
6. It is a settled law that all the sons have a right to inherit the property left by their father though there is a separation. Each son will be entitled to equal share along with the other female relatives of class I as mentioned in the schedule. The only exception is the former illustration which was given earlier. In the present case each will get it in view of Expln. 1 of Section 6. Section 6 prescribes that the property will devolve by survivorship upon the surviving members of the coparcenary. The principle of survivorship will not apply to a case where there is a female relative mentioned in class I of the schedule of Section 8. If a female relative of class I is there then the property left by a male member in the coparcenary shall devolve equally upon the different members of class I of the schedule. In view of Expln. 1 each one will get equal share so far as class I heirs of the schedule are concerned. Expln. 2 will apply to a case where the former illustration applies. In the former illustration it has been shown that A died leaving behind his two sons -- B and C. After separation, A and C remained joint. In this case Expln. 2 will apply and C will inherit the property left by A because he was living with A, and B had no right to lay any claim in respect of the property left by A. In a case of this type, only Expln. 2 will apply. Otherwise, in all the cases, after the father dies, all his heirs including his sons, daughters and widow will take equal share. We, therefore, reject the contention of the learned counsel for the appellants to the effect that Most. Mushni became the sole heir after the death of Janki. If Mushni was entitled to 1/6th share then she was entitled to transfer her 1/6th share to any other person. The court below was satisfied with the genuineness of transfer made by Mushni under Ext. B2-I in favour of defendants 1/a and 1/b (appellants) in respect of her 1/6th share, and to that extent the share (i.e., 1/6th share) will devolve on appellants (defendants 1/a and 1/b). The other heirs, namely, the plaintiffs will get 1/6th share, defendants 3, 4 and 5 being the heirs of Chulhai will get l/6th, defendant No. 6 as being the daughter of Janki will get 1/6th share, defendant No. 7 being another daughter of Janki ' will get 1/6th share and defendant No. 1, being the son of Janki will also get l/6th, and defendants 1/a and 1/b (appellants) will get l/6th, the share which was sold by Most. Mushni in favour of defendants 1/a and 1/b. The same view was expressed by the trial Judge to which we agree, in this view of the matter, we accept the testimonies of plaintiffs' witnesses and reject the testimonies of defendants' witnesses so far as this point is concerned.
7. DWs 9. 10 and 11 have stated that defendants 1/a and 1/b, after purchase, had constructed a new house. The statement of these witnesses has not been rejected by the court below. On the other hand, it appears from paragraph 21 of the judgment that the trial court had accepted the correctness of the statement of the defendants' witnesses. It is, therefore, clear that after purchase defendants 1/a and 1/b have constructed a new house. Defendants 1/a and 1/b (appellants) were entitled to only 1/6th share in respect of the property sold by Most. Mushni. The Advocate-Commissioner is directed not to disturb the possession of defendants 1/a and 1/b (appellants) in respect of the new house. He will value the new house and give compensation of 1/6th share to each of the different sets of defendants and the plaintiffs. In other words, he will value the price of the new house and after deducting the valuation of 1/6th share, the balance of the valuation shall be equally divided, i.e., 1/6th to each of the parties, namely, 1/6th to the plaintiffs, 1/6th to defendants 3, 4 and 5, 1/6th to defendant No. 1, 1/6th to defendant No. 6 and 1/6th to defendant No. 7. In other words, 1/6th of the valuation, as indicated above, should be paid to each of the abovementioned parties after deducting 1/6th share which belongs to defendants 1/a and 1/b (appellants) by virtue of the sale deed (Ext. B2-I).
8. In the result, the appeal is dismissed with the modification and clarification made in respect of the new house. Parties will bear their own costs.