Patna High Court
Bisheshwar Mahto And Ors. vs State Of Bihar And Ors. Etc. on 13 December, 1990
Equivalent citations: 1991(39)BLJR1015
JUDGMENT Gopichand Bharuka, J.
1. The relief claimed in C.W.J.C. No. 5614 of 1987 is consequential to the result of C.W.J.C. No. 5615 of 1987, as such both the writ applications are being disposed of by a common judgment.
C.W.J.C. No. 5615 of 1987 In this writ application, the petitioner has prayed for quashing of the orders contained in Annexures 1, 2 and 3, which have been passed by the Consolidation Authorities under the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Consolidation Act').
2. The petitioner and respondent No. 5 are the descendents of a common ancestor, Ramnevaj Singh. Ramnevaj Singh had two wives. From the first wife, he had one son Baldeo Singh. From his second wife he had two sons, Jagdish Singh and Rajmohan Singh. Jagdish Singh died issueless in 1934 leaving behind his wife Ramlochan Kuer and, therefore, she succeeded to the properties of her husband at that time as a limited owner but pursuant to Section 14 of the Hindu Succession Act, 1956, she became the full owner thereof, Rajmohan Singh died in 1962 leaving behind his two married daughters including Tara Devi, who is respondent No. 5 to the writ application.
3. It has been stated in paragragh 7 of the writ application that Ramlochan Kuer died on 16-9-1975 and thereafter on 1-12-1975, Baldeo Singh also died. This foundational fact has not been denied by the respondents. There is no counter-affidavit on record to dispute this fact. Bildeo Singh had died leaving behind his son Ramdeo and grandson Ram Nandan Singh being the son of his second predeceased son Suryadeo Singh.
4. In the above circumstances, a question had fallen before the Consolidation Authorities as to who was the legal heir of late Ramlochan Kuer on the date of her death i.e. on 16-9-1975. According to the uncontroverted facts on record on the date of death of the intestate two relatives falling in the category of class II heirs were surviving, namely, (i) Baldeo Singh, the step brother of her husband and (ii) Tara Devi (Respondent No. 5), daughter of Jagdish Singh, full brother of her husband. Only these two persons are the competing heirs in the present case. It is so because Ramdeo and Ramnandaa are claiming only through late Baldeo Singh.
5. Section 15 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Succession Act') provides general rules of succession in the case of female Hindus which reads as under:
15.(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 predeceased 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 predeceased (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 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 predeceased 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.
6. Since, Ramlochan Kuer, intestate, had died issueless, therefore, the properties inherited by her from her husband devolved on the heirs of her husband. For ascertaining the heirs of her husband, the rules contained in Section 8 of the Succession Act need to be seen. This section provides general rules of succession in the case of males and reads as under:-
8. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
7. Admittedly, in this case there are no class I heirs of the husband of the intestate. The list of class II heirs is as under:-
I. Father.
II. Son's daughter's son, (2) son's daughter's daughter (3) brother, (4) sister.
III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter, IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter. V. Father's father, father's mother.
VI. Father's widow, brother's widow.
VII. Father's brother, father's sister.
VIII. Mother's father, mother's mother.
IX. Mother's brother, mother's sister.
8. A bare look at the entries of class II heirs shows that Baldeo Singh being the brother of the husband of the deceased falls in Entry II of class II heirs whereas respondent Tara Devi, being the daughter of the brother of the husband of the intestate falls in Entry IV of the above class.
9. The order of succession among the heirs in the Schedule of the Succession Act has been provided in Section 9 thereof and reads that "among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second shall be preferred to those in the third entry; and so on in succession." In view of this mandatory provision governing the order of succession among the heirs in the Schedule, it has to be held that the heirs falling under Entry II will have preference over the heirs falling under Entry IV. Therefore on the date of death of the intestate, Baldeo Singh was the only heir entitled to succeed to her properties.
10. It has been submitted on behalf of the respondent, Tara Devi that in view of the statutory provisions contained in Section 18 of the Succession Act, she was the only legal heir to the properties of the intestate. The basis of the submission is that the relations of full blood will always have preference over the relation of half blood. In this connection, the definition of lull blood and half blood as set out in Section 3(e) of the Succession Act has been referred to. This clause reads as under:
3(e) "full blood" "half blood" and "uterine blood"--
(i) two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but by different wives.
(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.
11. Section 18 of of the Succession Act provides that heirs related to an intestate by full blood shall be preferred to heirs related by half blood, If the nature of the relationship is the same in every other respect.
12. Learned Counsel for the respondent is correct in asserting that Baldeo Singh was a half blood heir whereas Tara Devi is a full blood heir. But then this by itself cannot give a preferential right of succession to Tara Devi. This rule of preference contained in Section 18 of the Act will have its application only if "the nature of the relationship is the same in every other respect." Admittedly, in this case, the nature of relationship of Baldeo Singh and Tara Devi is not the same with the husband of the intestate, namely, Jagdish Singh. Baldeo Singh is the brother of Jagdish Singh falling in Entry II and Tara Devi is the niece i.e. daughter of his brother Rajmohan Singh falling in Entry IV. Therefore, under these circumstances, Section 18 of the Succession Act has no application. This view of mine is fully supported by a Full Bench decision of the Bombay High Court in the case of Waman Govind Shindore and Ors. v. Gopal Baburao Chakradeo and Ors. , where it has been held in para 14 that:
...It is obvious that when the Parliament referred to the "nature of relationship is the same in every other respect", it was intended to restrict the preference only in cases where heirs stood in the same degree of relationship with the deceased. These words were clearly intended to codify the prevalent rule of law that the rule of preference between heirs of full blood and heirs of half blood applied only when there was a competition between heirs of the same degree or proximity of relationship to the deceased was of the same degree and the rule did not apply if claimants of full blood or half blood were of different degrees in relationship to the deceased....
13. In veiw of the discussions made above, I am of the view that the authorities under the Consolidation Act have erred in law in holding that Tara Devi was the rightful heir of the intestate Ramlochan Kuer. Accordingly, the orders as contained in Annexures 1, 2 and 3, passed by the respondent Nos. 2, 3 and 4 are hereby quashed.
C.W.J.C. No. 5614 of 198714. The three petitioners in this case are the purchasers of properties from the heirs of Baldeo Singh. Since I have already held above that Baldso Singh was the only heir of the Intestate Ramlochan Kuer on the date of her death, therefore, it has to be held that the petitioners in this case had purchased the properties from the rightful owners and accordingly, the orders as contained in Annexures 1 and 2 are quashed.
15. Under the facts and circumstances of the case, there will be no order as to costs in both the writ applications.