Bombay High Court
Shalikram Urkuda Chambhare vs Pandurang S/O Kondu Chatukhodpe on 28 January, 2009
Author: S.R.Dongaonkar
Bench: S.R.Dongaonkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1730/2008
1. Shalikram Urkuda Chambhare,
aged 40 years, Occ. Agriculturist
2. Bapuji Dasaru Chambhare,
(died) through legal heirs.
3. Smt. Sumitrabai wd/o Bapuji Chambhare
aged 39 years, Occ. Household
4, Yadao s/o Bapuji Chambhare.
Aged 36 years, Occ. Agriculturist,
5. Bandu S/o Bapuji Chambhare
Aged 33 years, Occ. Agriculturist,
6. Parashuram s/o Bapuji Chambhare,
Aged 30 years, Occ. Agriculturist,
7. Maya d/o Bapuji Chambhare,
Aged 27 years, Occ. Household
All residents of Gangalwadi, Tah. Mul,
Distt. Chandrapur. ...PETITIONERS
...versus...
1) Pandurang s/o Kondu Chatukhodpe,
R/o. Gangalwadi,
Tah. Mul. District. Chandrapur.
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2) Anandrao s/o Shivram Chatukhodpe,
R/o. Mokhala, Tah. Saoli,
Distt. Chandrapur.
3) Tarabai w/o Ganpati Chambhare,
R/o. Gangalwadi,
Tah. Mul, Distt. Chandrapur.
4) Anusayabai w/o Kisan Bahyad,
R/o Samda, Tah. Sindewahi,
District. Chandrapur.
..RESPONDENTS.
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Shri C.S.Kaptan, Advocate, for the petitioners
Shri F.T.Mirza, Adv. with Shri A.I.Sheikh, Adv.
for Respondents,
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CORAM : S.R.DONGAONKAR, J.
DATE : 28th JANUARY, 2009
JUDGMENT
1. Heard Shri C.S.Kaptan, Advocate, for the petitioner and Shri A.I.Sheikh, Advocate, for the Respondents.
2. By this petition under Articles 226 & 227 of the Constitution of India, the petitioners are ::: Downloaded on - 09/06/2013 14:17:05 ::: 3 challenging the order of the Additional Commissioner,Nagpur, in Revision No. 22/RTS-
64/2004-2005, by which the revision application of the petitioners to challenge the order of Additional Collector, Chandrapur, in appeal, was dismissed.
3/- Some facts which need to be noted are that.
Initially the land in question was recorded in the names of the petitioners. The respondent raised objection to that. The said objection was decided on 08.05.2000 in Revenue Case No. 6/RTS-64/1999- 2000, by Tahsildar, Mul. Feeling aggrieved, the petitioners preferred an appeal under Section 247 of the Maharashtra Land Revenue Code. The same was decided. It was held by the learned Sub Divisional Officer, Chandrapur, that the petitioners and respondents both are successor of deceased Gangubai and Bhivrabai. Thereafter the petitioners preferred ::: Downloaded on - 09/06/2013 14:17:05 ::: 4 appeal against that order before the Additional Collector, Chandrapur. The learned Additional Collector, however, found that the petitioners are not the blood relations of deceased Gangubai and Bhivrabai and therefore, he dismissed the appeal. A revision was preferred and by the impugned order, the Additional Commissioner, ig Nagpur, dismissed the revision application of the petitioners. Precisely, it is held by the Additional Commissioner that the petitioners are not the L.Rs of deceased Gangubai and Bhivrabai, who could succeed their properties by virtue of Section 18 of the Hindu Succession Act.
4/- The petitioners challenge that order in this petition.
5/- Learned counsel for the petitioner relying on AIR 1976 Bom 375 (Purushottam Waman Gabale ::: Downloaded on - 09/06/2013 14:17:05 ::: 5 and others vs. Shripad Ramchandra) submitted that the petitioners have inherited the properties of deceased Gangubai and Bhivrabai and therefore, their names were rightly recorded in respect of the property in dispute. According to him, therefore, the learned Additional Commissioner should have allowed the revision application of the petitioners.
ig He, therefore, claims that the impugned order be quashed and set aside and the petition be allowed.
6/- As against this, learned counsel for the respondents has submitted that the Purushottam's case, reported in AIR 1976 Bom 375 (supra) has been overruled in 1984 Mh.L.J. 1 ( Waman Govind Shindore and others vs. Gopal Baburao Chaaaaakradeo and other) (by the Full Bench of this Court). As such according to him, this petition can ::: Downloaded on - 09/06/2013 14:17:05 ::: 6 not succeed as it is based only on the propositions laid by Purushottam's case. According to him, the revision application of the petitioners was rightly dismissed inasmuch as the petitioners right to inherit the disputed property can not flow from the provisions of Section 18 of the Hindu Succession Act.
7/-
At this stage, it is necessary to see the genealogical tree mentioned in the petition.
Hari
Bijabai (wife) Rukhamabai (wife)
Jairam Jainabai Tanabai Nagubai
Urkuda Dasaru
Shalikram Tarabai
Bapuji Parviti Aruna
Gangi Bhivara Anandrao Tarabai Anusaya
Pandurang
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8/- The provisions of Section 18 of the
Hindu Succession Act read as under.
18. Full blood preferred to half blood. --
Heirs related to any 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.
9/- It was held in the case of Purushottam,
ig AIR
1976 Bom 375 (supra) thus--
"13. The over-all effect of these provisions in the Act, so far as it is relevant for our purposes, is that the heirs in Entry II, namely, the brother and sister, take simultaneously. Now, Bhimabai was the sister of full blood of Shankar. Pandurang, on the other hand, was a brother of half blood of Shankar. Section 18 of the Act provides:-
'18. Heirs related to any 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'.::: Downloaded on - 09/06/2013 14:17:05 ::: 8
It is plain that a full brother is preferred to a half brother and a full sister is preferred to a half sister. The question that presents some difficulty, however, is whether the nature of the relationship with the intestate of his brother and sister enumerated in Entry II of Class II of the Schedule can be said to be the same in every respect, so that a full brother would be preferred to a half sister or a full sister would be preferred to a half brother. In other words, the question is whether Bhimabai as a sister of full blood of Shankar excludes Pandurang who is the brother of Shankar by half blood. This depends upon the interpretation of the words 'if the nature of the relationship is the same in every other respect' in Section 18.
...
...
20. In construing the words 'if the nature of the relationship is the same', the test, in our opinion, cannot be the board test of the heirs being equally related, that is, the test of their being the same degree in ascent or descent from the intestate. The classification of heirs in Entry II is not on the basis of nearness of blood relationship. For example, the heirs in the first two categories are much farther away than the heirs in the last two categories. In other words, the heirs in the first two categories are much far removed from the intestate than the heirs in the last ::: Downloaded on - 09/06/2013 14:17:05 ::: 9 two categories. There is no reason why the concept of 'equally related' in the sense that the heirs are removed from the intestate to the same degree should be introduced in interpreting the words 'if the nature of the relationship is the same.' We do not find any material difference in the expression 'the nature of relation being the same' and 'the relationship being the same' which the learned Judges in Sarwan Singh v. Dhan Kaur, AIR 1971 Punj 323 have pointed out.
To us it appears to be a case of distinction without a difference. It appears to us that nothing more than a plain meaning should be given to the expression 'if the nature of the relationship is the same' in Section 18. If that plain meaning is given, then the nature of the relationship of a brother form the intestate is not the same as that of the sister from the intestate. The nature of the relationship of these two heirs can be the same if the concept of 'equally related' that is, being the same degree away in ascent or descent from the intestate, is incorporated in Section 18.
But there is no reason why such a concept should be incorporated which can only be foreign to Section 18.
21. We cannot also lose sight of the words 'in every respect' and 'other'. The word 'other' appears to us to mean other than full blood or half blood. The question is whether a brother and sister are such heirs where the nature of the relationship could be said to be the same, ::: Downloaded on - 09/06/2013 14:17:05 ::: 10 in every respect. Taking the plain meaning, not incorporating the foreign concept of 'equally related', and having regard to the fact that Section 18 is an exception and a limited exception by the application of which a brother of half blood in Entry II will be excluded, the meaning that should be given in the expression 'if the nature of the relationship is the same in every other respect' is that only if there is a brother of full blood and a brother of half blood, then the brother of full blood will exclude the brother of half blood. Similarly, where there is a sister of full blood and a sister of half blood, the former will exclude the latter. But if there is a brother of half blood and a sister of full blood, the former will not be excluded by the latter. It will thus be only the presence of a relation of an heir of half blood along with an heir of full blood in that particular category of the heir that the full blood heir will exclude the half blood heir. It is only by this interpretation that the exception in Section 18 will be attracted to the minimum to the clear category of persons sought to be excluded and the scope of the exception will not be enlarged to exclude the category of persons who are otherwise not excluded by the general provisions of succession and the rules of inheritance."
10/- In Waman's case; 1984 Mh.L.J. 1 (Supra), ::: Downloaded on - 09/06/2013 14:17:05 ::: 11 Full Bench of this Court has held in para 18 thus-
"18. If conferment of new rights of succession in favour of female was one of the avowed objects of the Hindu Succession Act and if female heirs were to be treated equally with the male heirs any construction which would defeat this purpose must be avoided.
As already pointed out the effect of the decision in Purshottam's case is that if there are female heirs of full blood and male heirs of half-blood, the heirs of full blood would not exclude male heirs of half-blood. This would obviously result in inferior treatment of female heirs of full blood in comparison with male heirs of full blood - a result which is incompatible with the object of treating female heirs and male heirs equally. In the view which we have taken, we must hold that the decision in Purshottam's case is not correct and we, therefore, overrule the same.
It is, therefore, clear that the decision in Purshottam's case has been expressly overruled.
11/- Petition is based only on the proposition laid down in of Purshottam's case and no other serious contentions are raised, so, this petition can not ::: Downloaded on - 09/06/2013 14:17:05 ::: 12 succeed. Accordingly the same is dismissed. Rule discharged. No order as to costs.
JUDGE Rvjalit ::: Downloaded on - 09/06/2013 14:17:05 :::