Jharkhand High Court
Jagdish Mahato Aged About 52 Years Son Of ... vs Mani Ram Mahato Son Of Late Chutu Mahato on 29 February, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No.153 of 2020
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Jagdish Mahato aged about 52 years son of Late Sona Ram
Mahato, resident of village-Saharpura, P.O. Kusunda, P.S. Putki,
District-Dhanbad, at present residing at Godhar Kurmidi Basti,
P.O. Kenduadih, P.S. Kenduadih, District-Dhanbad
.... .... .... Defendant/Respondent/Appellant
Versus
Mani Ram Mahato son of Late Chutu Mahato, resident of
village-Godhar, P.O. Kenduadih, P.S. Kenduadih, District-
Dhanbad
.... .... .... Plaintiff/Appellant/Respondent
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Om Prakash Singh, Adv.
Mr. S.N. Das, Adv.
For the Respondent : Mr. Ramchander Sahu, Adv.
Mr. Sudhir Kumar Sharma, Adv.
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JUDGMENT
C.A.V On 30/11/2023 Pronounce on 29 / 02 /2024
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Heard learned counsel for both the parties.
1. The second appeal has been preferred for setting aside the Judgment and Decree passed in Civil Appeal No.97 of 2018 by which the learned First Appellant Court vide its judgment dated 18.02.2020 and Decree dated 25.02.2020 has reversed the Judgment dated 14.06.2018 and Decree dated 26.06.2018 passed in Title Suit No.76 of 2006.
2. The factual matrix of the case is that the land pertaining to Khata No.31 of Mauza Godhar, Plot No.1326, Area 13 decimals was recorded in the name of Bhadu Mahato in C.S. record of right. Bhadu Mahato constructed the house over the said land and started living with his family members till his death and died leaving behind his two sons namely Baneshwar Mahato and Chhatu Mahato who jointly inherited the land and continued to reside over the suit plot and premises. Subsequently Baneshwar Mahato and -2- S.A. No.153 of 2020 Chhatu Mahto partitioned their land and house in half share each i.e. 6 ½ decimals of land. It is further alleged that Chattu Mahato died in the year 1945 leaving behind his widow Rashu Mahatain and three sons namely Birbal Mahato, Hiralal Mahato, Maniram Mahato and three daughters namely Manjwa Mahatain, Sanjwa Mahatain and Kunti Mahatain as legal heirs. Subsequently, Rashwa Mahatain died in the year 1949 and all three sons remained in joint possession over the land of Chhatu Mahato. All the three daughters namely Manjwa Mahatain, Sanjwa Mahatain and Kunti Mahatain did not inherit any interest over the land of Chhatu Mahato including the suit property as they were living with their husband in another village. It is alleged that Birbal Mahato and Hiralal Mahato had died issueless and they have no widows, therefore, the interest of the Birbal Mahato and Hiralal Mahato devolved upon the surviving brother namely Maniram Mahato who alone remained in possession over the land and house mentioned in the Schedule (A).
3. The defendants Jagdish Mahato, the son of Kunti Mahatain after death of Kunti Mahatain, was brought up in the house of the plaintiff(Maternal Uncle) and after attaining majority, he was allowed to remain in one of the rooms over the suit premises, and the possession of the defendant was from the very inception permissive in nature and he has never got right, title and interest over the said property described in Schedule "B" to the plaint.
4. In the month of April, 2006, the defendant started claiming his own interest over the room and house described in Schedule "B" and removed the tiles for renovation of the said premises given to him for residential purpose without consent of the plaintiff. This event casts doubt on the title of the plaintiff, hence suit for declaration of right, title and -3- S.A. No.153 of 2020 interest as well as recovery of the possession were brought which was registered as Title Suit No.76 of 2006.
5. On the other hand, the case of the defendant is that the property of Bhadu Mahato devolved on Chhatu Mahato and Baneshwar Mahto who were residing as per amicable family arrangement separately in mess and property. Chhatu Mahato was residing in the house constructed in half portion bearing Plot No.1326 Area 6 ½ decimals but he died in the year 1959 not in the year 1945 as alleged by the plaintiff, the wife of Chhatu Mahato also died in 1976-77 not in the year 1949 as alleged by the plaintiff.
6. As such, both Chhatu Mahato and his wife Rasua Mahatain died after passing of Hindu Succession Act, 1956, hence, all the daughters of Chhatu Mahato namely Manjwa Mahatain, Sanjwa Mahatain and Kunti Mahatain inherited property of Chhatu Mahato including the property described in Schedule "A" along with brothers. Since, Birbal Mahato and Hiralal Mahato died issueless, hence their shar in property also devolved upon the surviving heirs and successor family members as well Maniram Mahato and his surviving sisters including the mother of this defendant. It is absolutely false to say that Maniram Mahato alone inherited property left by Chhatu Mahato.
The mother of the defendant died while he was minor then he was residing in the house of plaintiff as a matter of his own right and not on strength of permissive possession given by the plaintiff as alleged. Therefore, the plaintiff has no cause of action or right to claim any relief as prayed for and the suit is liable to be dismissed.
7. On the basis of the pleading of the parties, following issues were settled by Ld. Trial court for adjudication:-
(1) Whether the suit is maintainable in its present form?-4- S.A. No.153 of 2020
(2) Whether the plaintiff has any valid cause of action?
(3) Whether the suit is barred by waiver, estoppal and acquiescence?
(4) Whether the suit is barred by non-joinder and mis-joinder of the parties?
(5) Whether the suit property is joint property of plaintiff and defendant?
(6) Whether the plaintiff has any right, title or interest over the suit property?
(7) Whether the plaintiff is entitled to any relief or reliefs as claimed?
8. In order to substantiate his case the plaintiff has examined 6 oral witnesses and also exhibited the documentary evidence as follows:
Ext.-1 Original sale deed no.6851 dated 22.06.1950 Ext.-2 Rent receipt dated 20.06.2006 Ext.-3 Certified copy of Khatiyan of khata no.31 of mouza Godhar Ext.-4 Certified copy of voter list.
9. On the other hand, the defendant has examined three oral witnesses namely Jagdish Mahato(D.W.-1), Jagdish Chandra Mahato (D.W.-2) and Gangadhar Mahato (D.W.-3), the defendant has adduced the copy of voter lists Ext.A and Ext.A/1 as documentary evidence.
10. The learned trial court while deciding the issue as to whether Chhatu Mahato died in the year 1945 or year 1959, observed that Ext -1 registered sale deed no.6851 dated 22.06.1950 appears to have been executed by one Biru Mahato, son of late Chhatu Mahato. The said sale deed was objected by the defendant as the son of Chhatu Mahato was Birbal Mahato and not Biru Mahato and it was alleged by the plaintiff that he has got possession of above sale deed from his father Chhatu Mahato after his death, which casts -5- S.A. No.153 of 2020 doubt on the plaintiff's version that if his father died in the year 1945, then how such document was in possession of his father. The learned trial court has dismissed the suit on the ground that plaintiff has failed to prove his pleadings.
11. Learned trial court has taken issue nos.5 and 6 altogether for adjudication and on the basis of oral and documentary evidence adduced by the parties and after analyzing the same arrived at conclusion that the plaintiff has failed to prove his pleadings through cogent evidence that Chhatu Mahato died in the year 1945 and not in the year 1959. Similarly, the plaintiff has also failed to prove the partition of the property rather it was joint family property of the plaintiff and defendant. Accordingly, on the basis of decisions on main issues, dismissed the suit of the plaintiff.
12. The learned first appellate court has formulated two basic points for adjudication as to "whether the plaintiff/appellant has got right, title and interest over the suit land described in the Schedule "A" of the plaint? Further "whether the plaintiff is entitled for recovery of possession over the Schedule "B" property."
13. Learned appellate court posed a question that even after death of Chhatu Mahato after 1956 whether the plaintiff solely acquired title over Schedule -A land or he jointly inherited with his three sisters including mother of the defendant. The learned appellate court placed reliance upon the provision of Section 23 of the Hindu Succession Act, 1956- S.23 Special Provisions respecting dwelling houses-where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such -6- S.A. No.153 of 2020 female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.
14. In the above context the learned appellate court recorded findings that admittedly the suit property is dwelling house and mother of the defendant, was daughter of Chhatu Mahato. The mother of defendant namely Kunti Devi died in 1985 and never resided in disputed house.
It was further observed that Section 23 of Hindu Succession Act, 1956 as per amended Act, 2005, was deleted but prior to that mother of the defendant namely Kunti Mahatain was residing as per right in the house situated over the suit premises has not been proved by the defendant as to whether his mother was deserted, separated or divorced. Accordingly, the mother of the defendant was never coparcener in the suit land nor she had a right of residence over the suit land. It is also fact that two brothers of the plaintiff died issueless without leaving any widow. Hence, the plaintiff has acquired right, title and interest over entire 6 ½ decimals of land of plot No.1326 described in Schedule-A land and the defendant has no right, title and interest over the said schedule A and B land. Accordingly both points decided in favour of the plaintiff/appellant and the suit of the plaintiff was decreed on contest.
15. While assailing the impugned judgment and decree, the appellant/defendant has preferred this appeal on following substantial questions of law:
-7- S.A. No.153 of 2020(i) Whether the learned first appellate court has committed a gross illegality by relying upon section 23 of Hindu Succession Act in its judgment dated 18.02.2020 and in respect of the suit, the cause of action which arose on 15.04.2006 and on subsequent dates even though Section 23 of Hindu Succession (Amendment) Act, 1956 was omitted vide Section 4 of Hindu Succession (Amendment) Act, 2005 with effect from 09.09.2005?
(ii) Whether the findings of fact arrived at by the learned first appellate court is perverse?
16. Learned counsel for the appellant assailing the impugned judgment and decree has agitated the following grounds:-
(i) The plaintiff has measurably failed to prove that his father died before the commencement of the Hindu Succession Act, 1956, therefore, as per section 6 of Hindu Succession Act, 1956 as amended and substituted in the year 2005, the mother of the defendant, namely Kunti Devi who happens to be the daughter of the common ancestor Chhatu Mahato was entitled to inherit the property of her deceased father and the defendant/appellant herein being class I heir has also acquired right in the suit property.
(ii) Learned trial court has rightly apprised the issue involved in this case and dismissed the suit of the plaintiff but the learned appellate Court has taken a wrong and erroneous approach by misconstruing the provisions of Sections 6 and 23 of Hindu Succession Act, 1956 although section 23 of the Hindu Succession Act is also deleted by Amendment Act, 2005.-8- S.A. No.153 of 2020
(iii) The learned appellate Court has failed to appreciate that Hiralal Mahato was one of the brother of the plaintiff who brought the defendant/appellant Jagdish Mahato at the age of 15 years after death of his mother, namely Kunti Mahatain. The appellant has performed last rite of Hiralal Mahato like son and remained in possession over the scheduled B property as a daughter's son of the Chhatu Mahato as his independent right.
(iv) The appellant was aged about 38 years in the year 2006 and has acquired right, title and interest over the suit property. The claim of exclusive title by the plaintiff over the scheduled B property is not warranted under the law.
17. In the above premises the impugned judgment and decree passed by learned first appellate Court is fit to be set aside and the decree passed by the trial court is liable to upheld and confirmed by allowing this appeal.
18. Per contra, learned counsel for the plaintiff/respondent has vehemently opposed the aforesaid points of argument raised on behalf of the appellant and submitted that admittedly the appellant is a daughter's son of common ancestor Chhatu Mahato and the suit property is a dwelling house, therefore, there is no question of any independent right of the defendant/appellant in the suit property either in view of the amended provisions of Sections 6 or section 23 of the Hindu Succession Act, 1956.
19. The defendant/appellant was never entitled to possession over the suit property on his own right, therefore, the approach of learned first appellate court is justified under law which requires no interference by way of this appeal, and being devoid of merits is fit to be dismissed.
20. Before imparting my verdict on the above substantial questions of law in the light of points of argument of -9- S.A. No.153 of 2020 learned counsel for respective parties, it is profitable to discuss the relevant provision of Hindu Succession Act, 1956 for proper adjudication of the issues involved in this appeal.
Prior to enactment of Hindu Succession Act, 1956, there was mainly two schools of Hindu Law in India i.e. Dayabhaga which was prevalent in eastern part of India i.e. Bengal and the adjoining area and Mitakshara which was prevalent from the rest of the India. Under the Mitakshara of school of Hindu law, women in a joint family had merely a right of maintenance/subsistence but had no right of inheritance in the property. The basis of Hindu Joint Family was a common male ancestor and the properties of the family were held as a coparcenary property with male member of the family having a right to the property by virtue of birth and their interest in the coparcenary property would keep varying depending upon the death or birth of a male in the Hindu Joint Family. The property of male coparcener on his death used to pass by survivorship in the Mitakshara School of Hindu Law. No female is a member of the coparcenary, though she is a member of joint Hindu family. The coparcenary would normally consist up to 4 degrees i.e. the common ancestor (coparcener), his son, grandson and great- grandson.
21. In the Dayabhaga School of Hindu Law, the daughters also got equal shares along with their brothers. In the Dayabhaga School, property is transmitted by succession and not by survivorship. However, so far as the Dayabhaga School is concerned, there was no concept of coparcenary property and every member of a joint Hindu family would hold in his/her own right and was entitled to dispose of the property as he/she deems fit either by gift or will. There was no concept of passing property by survivorship nor did -10- S.A. No.153 of 2020 a Hindu male in Dayabhaga of School acquire rights to property merely by virtue of his birth. Consequently, women had a right equal to the rights to that of men belonging to the family in the Dayabhaga School of Hindu Law.
22. The earliest legislation with regard to the right of female inheritance was made in 1929 called the Hindu Law of Inheritance Act, 1929. This act confers inheritance right to three female heirs-son's daughters, daughter's daughter and sister. Thus bringing about restrictions on the exclusive rule of survivorship. The next legislation was the Hindu Women's Rights to Property Act, 1937. This act enables the widow to succeed along with son of the deceased in equal share to property of her deceased husband. However, the widow was entitled only to the limited estate in the property i.e. life estate and could not dispose of the property during her life time.
23. In 1950, while framing the constitution, Articles 14, 15(2) (3) and 16 of the Constitution of India, sought inter alia to restrain practice of discrimination against women and make equal treatment of women a part of the fundamental rights guaranteed under the constitution. In line with the above constitutional objective, the parliament enacted the Hindu Succession Act, 1956 i.e. the Principal Act. This act applies to all Hindu including Bhudhist, Jains and Sikhs. It laid down the uniform and comprehensive legislation for women for inheritance and applies to all Hindus whether they are governed by Mitakshara or Dayabhaga School of Hindu Law. However, the section 6 of the Principal Act as originally enacted retain substantially the role of passing of property in a coparcenary by survivorship, although it did give rights of testamentary disposition to Hindu male in respect of his property including his coparcener share. The -11- S.A. No.153 of 2020 Erstwhile section 6 of the Principal Act (pre amended section 6) reads as under:
Section 6 Devolution of interest in coparcenary property-
"When a male Hindu dies after 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 and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified any Class I of the Schedule or a male relative specific in that Class, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship."
Explanation I.- For the purposes of the section, the interest of Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not."
Explanation II.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred therein.
24. It is interesting to note that the Hindu Code Bill although wanted to do away with Mitakshara coparcenary completely but section 6 of the Hindu Succession Act under the Principal Act advocates for retention of Mitakshara coparcenary property. In essence, the provision of section 6 provides that if the partition took place in the coparcenary property, then each male coparcener would get his share and mother and wife/widow would not become a coparcener but would -12- S.A. No.153 of 2020 get a share in the coparcenary property but a the daughter would get no share in the property. The daughter would only get a share as one of the heirs on the death of coparcener, out of shares, the share of the deceased in the coparcenary property on notional partition.
25. Keeping the aforesaid position of the Hindu Law, in its 174th report (May, 2000), the Law Commission on India was of the view that gender reforms were called for to ensure equality. The Law Commission recommended that the daughter should be made coparcener by birth and that shall be entitled to get the share on partition and/or on the death of a male coparcener. The Commission also recommended that a daughter who is married after the commencement of the Act, should be entitled to a share in the ancestral property as she has become a coparcener prior to her marriage
26. On 20th December, 2004, Hindu Succession Amendment Bill, 2004 was introduced in the Rajya Sabha, inter alia, seeking to amend erstwhile Section 6 of doing away/omitting erstwhile section 23 of the Principal Act. The statement of objects and reasons for amending the "Principal Act" reads as follows:-
Statement Of Objects And Reasons "The Hindu Secession Act, 1956 has amended and codified the law relating to intestate succession Hindus and gave rights, which were till then unknown in relation to women's property. However, it does not interfere with the special rights of those, who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The act lays down a uniform comprehensive system of inheritance and applies, inter alia, to persons governed by Mitakshara or Dayabhaga School of Hindu Law and also to those governed previously by the Muru, -13- S.A. No.153 of 2020 Makkattyam @ Aliyastantan and Nambudiri laws. The Act applies to every person, who is a Hindu by religion in any of its forms or developments including a Virashiva, a Lingyata are a follower of Brahmo, Prathna or Arya Samaj; or to any person who is Bhudhist, Jain and Sikhism by religion; or to any other person who is not a Muslims, Christian, Parsi or Jews by religion. In case testamentary disposition, this Act does not apply and the interest to the deceased is governed by the Indian Succession Act, 1925."
Section 6 of the Act deals with the devolution of the interest of a male Hindu in coparcenary property and recognizes the rule of devolution of survivorship among the member of coparcener. The retention of the Mitakshara coparcenary property without including the females in it means that the female can not inherit in ancestral property as their male counter parts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has laid to oppression and negation of her fundamental rights of equally guaranteed of the constitution.
27. Having regard to the need of gender social justice to woman, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtha had made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerla legislature has enacted the Kerla Joint Hindu Family System (Abolition) Act, 1975.
It is proposed to remove the discrimination as contend in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until male heirs chose to decide their respective shares therein.
-14- S.A. No.153 of 2020It is also proposed to omit the said section, so far as to remove disability on female heirs contained in that section.
28. Thereafter, on 9th September, 2005, the Amendment Act, 2005 came to be passed w.e.f. 09.09.2005, whereby section 6 of the Principal Act is to be amended which reads as under:-
Section 6 Devolution of Interest in Coparcenary Property- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu Family governed by Mitakshara law, the daughter of a coparcener shall-
(a) by birth become a coparcener in her own right the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20th day of the December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership shall be regarded,, notwithstanding, anyghing contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of Hindu Succession (Amendment) Act, 2005, his interest in -15- S.A. No.153 of 2020 the property of a joint Hindu Family governed by a Mitakshara Law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition took place and -
(a) the daughter is allotted the same share as is
allotted to a son
(b) the share of the pre-deceased son or a
predeceased daughter as they would have got had they been alive at the time of the partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of pre-
deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation- For the purposes of this sub-section, the interest of Hindu Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitle to claim partition or not. (4) After the commencement of Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson, or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu Law, of such son, grandson or great- grandson to discharge any such debt:
-16- S.A. No.153 of 2020Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in the sub-section shall affect-
(a) the right of any creditor to proceed against son, grandson or great grandson as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.- For the purpose of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement to the Hindu Succession (Amendment) Act, 2005 (5) Nothing contained in this section shall apply to a partition, which has been effected before 20th day of December, 2004 Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by decree of a court.
29. Now reverting back to the main substantial questions of law involved in this case. There is no dispute that the lands pertaining to Khata No.31 Plot No.1326 area 13 decimals situated in village Godhar was recorded in the name of Bhadu Mahto, who died leaving behind his two sons, namely, Baneshwar Mahato and Chhatu Mahato.
30. It is also admitted fact that Baneshwar Mahato and Chhatu Mahato partitioned their land and were allotted half share each i.e., 6 ½ decimals. Now the dispute pertains to 6 ½ -17- S.A. No.153 of 2020 decimals land falling in the share of Chhatu Mahto, who is alleged to have died in the year 1945 leaving behind his widow Rashu Mahtain and three sons namely Birbal Mahato, Hiralal Mahato, Maniram Mahato and also three daughters namely Manjwa Mahatain, Sanjwa Mahatain and Kunti Mahatain (mother of the appellant/defendant).
31. According to the plaintiff, three daughters of Chhatu Mahto namely Manjwa Mahatain, Sanjwa Mahatain and Kunti Mahatain did not inherit any interest left by Chhatu Mahto including the suit property due to his death before commencement of Hindu Succession Act, 1956. It is also claimed that the Birbal Mahto and Hiralal Mahto died issueless leaving behind no widows, hence, their interest in the suit property was devolved upon the plaintiff as a sole surviving heir and successor.
32. It is also admitted fact that the present appellant Jagdish Mahato, son of Kunti Mahatain was brought up in the house of the plaintiff due to death of Kunti Mahatain while he was minor and even after attaining his majority, he was permitted to remain in one of the rooms over the suit premises. By virtue, thereof, the defendant is claiming right in the suit property.
33. I have given anxious consideration to the entire aspect of the case. The core issue delved upon by learned trial court as to whether common ancestor Chhatu Mahto died prior to the commencement of the Hindu Succession Act, 1956 i.e. 17th June 1956 or after commencement of the Act, 1956 holds no much water to decide this case. It is admitted position that the suit scheduled B property is dwelling house of the joint Hindu Family. Even if the disputed property may be assumed to be coparcenary property, then also as per the provision of section 6 of the Hindu Succession Act, 1956 the daughter could not form coparcenary in the orthodox Hindu Law, hence, she could not get share in the coparcenary property -18- S.A. No.153 of 2020 prior to the (Amended) Act of 2005 of the Hindu Succession Act, 1956.
In the case of Vineeta Sharma & Ors. Vs. Rakesh Sharma & Ors. reported in (2020) 9 SCC 1, while dealing with the question of daughter's right in coparcenary property substituted section 6 of the Hindu Succession Act, 1956, it was held that if a daughter is alive on the date of enforcement of Amendment Act, 2005 i.e. 09.09.2005, she become coparcener w.e.f. from the date of said amendment. The provision in substituted section 6 of the Hindu Succession Act confers status of coparcener on daughter born before or after the amendment in the same manner as son with same rights and liabilities but she must be alive on 09.09.2005. But in this case, mother of defendant/appellant had died in 1985.
34. Since, the right in coparcenary of daughter under the substituted section 6 is by birth, it is not all necessary that father coparcener should be living as on the date of coming into force of the amendment. The daughter now being a coparcener w.e.f. 09.09.2005 that date coming into force of the amendment, can claim partition, which is necessary constitution of coparcenary. The existence of coparcenary on date of coming into force of the amendment is essential to enable the daughter as a coparcener to enjoy the rights conferred on her. In case living coparcener dies after date of coming into force of the amendment, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3). Thus, what is significant how the right of coparcener is acquired under the Mitakshra coparcenary?
35. The status of the right conferred on daughter under substituted section 6 of the (Amendment) Act 2005 is not by survivorship not by birth. The survivorship as a mode of succession of property of Mitakshra coparcener has been -19- S.A. No.153 of 2020 abrogated w.e.f. 09.09.2005 by substituted section 6 of the Act, 2005.
36. In the instant case, in order to substantiate his pleadings that Chhatu Mahto died in the year 1945 the plaintiff has brought on record Ext.1 i.e. original sale deed No.6851 dated 22.06.1950. In the said sale deed one of the vendee is Sri Biru Mahto, son of late Chhatu Mahto. It is stated by the plaintiff that Biru Mahto is the Birbal Mahto who was his brother and also relied upon the certified copy of khatiyan, rent receipt and voter list etc.
37. It appears that the learned trial court has disbelieved the above evidence showing that Chhatu Mahto (common ancestor) was shown dead in the year 1950 in the aforesaid sale deed, simply on the basis of argument advanced on behalf of the defendant that the plaintiff has produced above documents and marked exhibit being 30 years old document, and he has not properly explained the custody of the sale deed rather states that it was in possession of his father after his death, he got it. A presumption was raised that when father himself was died then how he was possessing the sale deed and it was assumed to be suspicious document. Secondly, instead of Birbal Mahto, the name of Biru Mahto son of Chhatu Mahto was mentioned in the said sale deed. Merely because the plaintiff states that the above sale deed was in possession of his father during his lifetime can not be stressed much to disbelieve the contents of registered document. Moreover, death of Chhatu Mahto before or after the commencement of Hindu Succession Act has no bearing in the backgrounds of the factual aspect of this case and he found it after his death.
38. Learned trial court did not find any evidence on record that Chhatu Mahto died after 1956 except on the ground of presumption that the name of wife of Chhatu Mahto was appearing in the voter list in 1970, which is inconformity -20- S.A. No.153 of 2020 with the fact stated by the defendant that she died in the year 1976-1977. As such presumption of being alive or dead drawn by the learned trial court was not inconsonance with the provision of sections 107 and 108 of the Indian Evidence Act. The argument raised on behalf of the defendant casting doubt against the registered sale deed Ext.A, which shows that Chhatu Mahto died on the date of execution of the sale deed on 22.06.1950 and other materials discussed by the both trial Court and appellate Court.
39. It is evident that mother of the defendant, namely, Kunti Devi died in or about 1985 when the defendant was 14 years to 15 years old. It is also evident that Chhatu Mahto died prior to the commencement of the Hindu Succession Act, 1956. In this case, the mother of the defendant, namely, Kunti Devi who happens to be daughter of Chhatu Mahato could never be entitled to the coparcenary property either in section 6 of the Principal Act or substituted after Amendment Act, 2005 which came into force on 09.09.2005.
40. In the original section 6 the daughter was excluded from inheritance of coparcenary property as she could not be assumed the status of coparcener being female descendants. Moreover, the suit property in this case is a dwelling house and in respect of dwelling house, there was specific provision under section 23 of the Hindu Succession Act, 1956 as discussed above.
41. In the case of MC Thimmaraju Vs. Puttakenchamma AIR 1990 Karnataka, 317, it was held by the Karnatak High Court that "unless the expectation created by proviso clearly covers a case, a female heir even she is a daughter will not be entitle to right of residents in the dwelling house, if she is married unless it is proved that she has been deserted by her husband or has been separated or she has become the widow. When there was no evidence before the court that the plaintiff was in any way qualified to come within the -21- S.A. No.153 of 2020 proviso to section 23 of the Hindu Succession Act. The court below was in error in granting her right of residence."
42. In the instant appeal, from the perusal of the judgment of the trial Court as well as first appellate Court, it is abundantly clear that the plaintiff being sole survivor in the coparcenary property including the household property inherited the same by the survivorship after death of his two brothers and none of the sisters of the plaintiff ever got any status of coparcenary from the date of commencement of the substituted section 6 of the Hindu Succession Act i.e. 09.09.2005. The status of defendant in the suit premises is only of permissive in nature without any substantive right.
43. Accordingly, the plaintiff has acquired the valid right, title and interest in respect of suit property and also entitles to recover the possession of the suit scheduled B property from the defendant.
44. After overall scrutiny of the judgment and decree passed by the first appellate Court in the light of substantial questions of law raised in this appeal, I do not find any illegality or infirmity in the judgment passed by the first appellate Court, which is, hereby, upheld and confirmed.
45. Further, I do not find any legal substance in the points of arguments advanced by learned counsel for the appellant and no merits in this appeal, which is accordingly dismissed.
46. Both parties shall bear their own cost.
47. Let the copy of this judgment along with record of trial court be send to concerned court for information and needful.
48. Pending I.A. Nos.9493 of 2023 and 3016 of 203 are disposed off, accordingly.
(Pradeep Kumar Srivastava, J.) High Court of Jharkhand, Ranchi Date 29/ 02 /2024 Pappu-NAFR/-