Gauhati High Court
Smt. Dhanistha Kalita vs Ramakanta Kalita And Ors. on 16 July, 2002
Equivalent citations: AIR2003GAU92, AIR 2003 GAUHATI 92, (2003) 1 GAU LT 149
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. This second appeal is directed against the judgment and decree, dated 30-5-96, passed by the learned Assistant District Judge, Darrang, Mangaldoi, in Title Appeal No. 7 of 1995, dismissing the appeal and upholding the judgment and decree, dated 29-9-94, passed by the learned Munsiff No. 1. Mangaldoi, in Title Suit No. 31/97 partly decreeing the suit of the plaintiffs-respondents.
2. Facts of the plaintiffs' case, in brief, may be stated thus : The suit land, in question, originally belonged to one Shyamraj Kalita, whose first wife pre-deceased him leaving behind their daughter, Teveli. The plaintiffs are sons of Taveli. who lived with her husband. After the death of Teveli's mother. Shyamrai Kalita had married one Maheswari @ Someswari, a widow, who had, at the time of her marriage with Shyamrai Kalita, a son, Jagat Kalita, begotten from her predeceased husband. After Maheswari's marriage with Shyamrai Kalita, Jagat Kalita continued to live with his mother, Maheswari, and after the death of Jagat Kalita. Dhanista Kalita, who is daughter of the said Jagat Kalita (since deceased), lived with Maheswari and remained in occupation of the suit land. After Maheswari's death, Dhanistha Kalita continued to occupy the suit land and she transferred some plots, out of the total suit land, to other defendants by various registered sale deeds. After Shyarnrai's death, the suit land had devolved upon Maheswari and on her death, the suit land was inherited by the present plaintiffs as heirs of deceased Taveli, because Maheswari did not leave behind any issue through her second husband, Shyamrai. According to the plaintiff/respondents, Jagat Kalita had no right to inherit the properties of Shyamrai Kalita and hence, question of his daughter, Dhanistha, inheriting the suit land did not arise at all and she could not have legally sold the suit land or any part thereof to any one. The plaintiffs instituted a mutation case, but on the objection raised by Dhanistha, their prayer for mutation was rejected. The plaintiffs also came to know that Dhanistha had mutated her name in some of the disputed land. Though the plaintiffs asked the defendants to vacate the suit land and deliver possession thereof to the plaintiffs, the defendants refused to do so. The plaintiffs have, therefore, instituted the title suit seeking declaration of their rights, title and interest over the suit land and also for recovery of possession thereof.
3. The defendants, Dhanistha and others, contested the suit by filing their written statements, wherein it was contended, inter alia, that the plaintiffs had no right, title and interest over the suit land and that even if they had any title, the same stood extinguished by adverse possession inasmuch as Dhanistha had been in occupation of the suit land for 30 years, exercising openly rights of ownership over the suit land. Dhanistha inheritted the suit land from her father, Jagat, because being grant-daughter of Maheswari, Dhanistha was left behind by Maheswari as her only heir. The defendants, therefore, prayed for dismissal of the suit.
4. The learned Trial Court framed the following issues :
(i) Whether the plaintiffs have any cause of action for the suit.
(ii) Whether the plaintiffs have any right, title over the suit land and whether they can have any claim now?
(iii) Whether the defendant No. 1 and his mother had right, title and possession over the suit land?
(iv) Whether the defendant No. 4 and 5 have acquired right, title and interest and possession over the suit land?
(v) Whether the suit is barred by the adverse possession?
(vi) Whether the suit is barred by limitation?
(vii) Whether the Court has jurisdiction to try this suit?
(viii) Whether proper Court fee is paid in this suit?
(ix) To what relief, if any are the parties entitled to?
5. Both the sides adduced oral as well as documentary evidence. At the conclusion of the trial, the learned Munsiff by judgment, dated 29-9-94, declared that the plaintiffs had rights, title, interests and possession over half portion of the suit land. A decree was drawn accordingly.
6. The defendant No. 1, viz. Smt. Dhanistha Kalita, preferred an appeal against the judgment and decree of the learned trial Court, being Title Appeal No. 7/95. The learned Assistant District Judge Darrang, Mangaldoi, by the impugned judgment and decree, dated 23-5-86, dismissed the appeal and upheld the decree granted by the learned trial Court. Hence, the present second appeal.
7. This appeal has raised the following substantial question of law :
(i) Whether under Section 15of the Hindu Succession Act, 1956, the property of a female Hindu dying intestate shall devolve only on son and daughters (including their children) begotten by the deceased female from her husband, whose property she had actually inherited or whether the property can also devolve upon the son and daughters (including their children) begotten by the deceased through a husband other than the one, whose property she had actually inherited?
8. I have heard Mr. C. K. Sarma Baruah, learned senior counsel for the appellant, and Mr. K. K. Mahanta, learned senior counsel appearing for the respondents. I have also carefully perused the relevant records Including the impugned judgments and decrees.
9-10. Assailing the impugned Judgment and decree, Mr. Sarma Baruah has submitted that the learned trial Court as well as the learned first appellate Court completely misconceived the provisions of law governing inheritance of property left behind by a female Hindu and, under such misconception, came to erroneous finding that the plaintiffs, as heirs and successions of Teveli, were entitled to own and possess half of the suit land and the defendant No. 1, as successor-in-interest of Maheswari, would own and possess the remaining half portion of the suit land. Mr. Sarma Baruah has also submitted that Shyamrai's first wife died, in 1937, leaving behind her daughter. Taveli, who got married to Durga Kanta Kalita and died in 1940 leaving behind the present plaintiffs, viz. Rama Kalita and Lakeswar Kalita. Mr. Sarma Baruah has further submitted that since Taveli got married in 1940, when the Hindu Women's Right to Property Act, 1937 (for short "the Act of 1937"), was in force, she, as a married daughter, of Shyamrai, acquired no right and title over Shyamrai's properties when the latter died in 1946 and, on the death of Shyamrai, it was Maheswari alone (whom Shyamrai had married as his second wife after the death of his first wife) inherited the entire suit land as sole successor of Shyamrai Mr. Sarma Baruah has pointed out that under the Act of 1937, Maheshwari's rights of ownership over the suit land were, initially, of limited nature, but after the Hindu Succession Act, 1956 (for short 'the Act of 1956') came into force, Maheswari became absolute owner of the suit land. Learned counsel for the appellant has also pointed out that at the time of her marriage with Shyamrai, Maheswari had a son, Jagat Kalita, from her predeceased husband and Dhanistha (i.e. defendant No. 1), the defendant No. 1, being daughter of the said Jagat Kalita and grand daughter of Maheswari, succeeded to the suit land as sole owner thereof under the provisions of Section 15(2)(b) of the Act of 1956 and the plaintiffs can have legally no claim over the suit land, but the learned trial Court as well as the first appellate Court incorrectly and illegally held that the plaintiffs were entitled to succeed to half of the estate left by deceased Maheswari as heirs of Taveli without, however, noticing that Taveli, as a married daughter, had legally no rights, title and/or interests in the suit land. Mr. Sarma Baruah has further pointed out that the learned Courts below wrongly held that after the death of Shyamrai, his property under the Act of 1956 were inherited in equal share by Taveli and Maheswari, though Taveli, reiterates Mr. Sarma Baruah, could not have succeeded to the property inasmuch as she was married in 1937, when the Hindu Women's Right to Property Act, 1937, was in force, and as such, she, being already married off during Shyamrai's lifetime, could not have inherited the properties of her father and it was, thus, Maheswari alone, who had actually succeeded to the properties left by Shyamrai.
11. Mr. K. K. Mahanta, learned senior counsel for the defendants on the other hand, while controverting the above submissions made on behalf of the appellants, has submitted that a careful reading of Section 15(2)(b) of the Act of 1956 clearly reveals that it is only the son or daughter of a deceased female Hindu begotten by her from the husband, who owned the property originally, will succeed to the property left by her.
In the case at hand, Mr. Mahanta points out, since Jagat Kalita was, admittedly, not the son of Shyamrai Kalita, he did not fall within the ambit of Section 15(2)(b) and Dhanistha being Jagat Kalit's daughter can derive no title to the suit land and hence, the suit land must be held to have been deloved on the heirs of Shyamrai and the plaintiffs being grant-sons of Shyamrai are entitled to inherit the suit land. In support of his contention, Mr. Mahanta has placed reliance on a decision of the Apex Court in Bhagat Ram v. Teja Singh, reported in (2002) 0 SCC 210 : AIR 2002 SC 1.
12. Before entering into the controversy raised in this appeal, let me, for the sake of brevity, first state the facts of this case, which are not in dispute. Shyamrai's first, wife died in 1937 leaving behind their daughter Taveli, who was given in marriage in 1940. Shyamrai died in 1946. As a married daughter Taveli, under the Act of 1937, was not entitled to any share in the property left by her father in 1946 inasmuch as under the Act of 1937, married daughters were not entitled to inherit the property of their father. Shyamrai, admittedly married Maheswari after the death of his first wife. When Maheswari got married to Shyamrai, she already had a son, Jagat Kalita, begotten from her predeceased husband. When Shyamrai died in 1946, it was Maheswari, who, initially, inherited the property of Shyamrai including the suit land as a limited owner under the Act of 1937 and when the Act of 1956 came into force, she became the absolute owner of the property left by her husband, Shyamrai.
13-14. Now the question arises as to whether after Maheswari's death Dhanistha, as daughter of Jagat Kalita and grand daughter of Someswari inherited the said property to the exclusion of others including the heirs and successors of Taveli i.e. the plaintiffs.
15. From the case of Bhagat Ram, AIR 2002 SC 1 (Supra), it transpires that according to the Apex Court's views, if the son or daughter of the deceased Hindu female and/or children of any predeceased son or daughter of such female Hindu are not alive at the time, when the female dies, though she is the absolute owner of the property, the property will actually devolve on the heirs of her husband if the property belonged to the deceased female Hindu's husband. Similarly, if such property was inherited by her from her father, the property will devolve upon the heirs of her father if she left no son or daughter (including the children of her predeceased son or daughter). This position of law becomes clear from the observations of the Apex Court, in Bhagat Ram's case, AIR 2002 SC. 1 (Supra), which I quote hereunder :
".............Admittedly, Smt. Santi inherited the property in question from her mother. If the property held by a female was inherited from her father or mother, in the absence of any son or daughter of the deceased including the children of any predeceased son or daughter, it would only devolve upon the heirs of the father and, in this case, her sister Smt. Indro was the only legal heir or her father. The deceased Smt. Santi admittedly inherited the property in question from her mother. It is not necessary that such inheritance should have been after the commencement of the Act. The intent of the legislature is clear that the property, if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. So also under Clause (b) of Sub-section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. We do not think that the fact that a female Hindu originally had a limited right and later acquired the full right. In any way, would alter the rules of succession given in Sub-section (2) of Section 15".
16. What logically follows from the above discussions is that though Maheswari's siatus from being a limited owner of the suit property changed into absolute owner thereof with effect from the date of coming into force of the Act of 1956, the fact remains that if she is found not to have left any heirs and successors, who can fall within the ambit of Sub-section (2) (b) of Section 15, then, the property will pass over to, and devolve upon, the heirs of her husband, Shyamrai.
17. The question, therefore, which, now, needs to be determined is whether the expression "son and daughter" used in Clause (b) of Section 15(2) means the son and daughter of the deceased Hindu female begotten by her from her husband, whose property she had succeeded to, or the expression "son and daughter" will include the son and daughter of such female, whom she had begotten from a husband other than the husband, whose property the female Hindu had inherited.
18. While interpreting the ambit and scope of the expression "son and daughter" (including the children of any predeceased son and daughter), one has to bear in mind the reasons and objects for which Section 15 has been incorporated in the Act of 1956. As reflected from Apex Court's decision in Bhagat Ram, AIR 2002 SC 1 (Supra), the reasons for incorporating Section 15(2), assigned by the Joint Committee in Clause 17 of the Bill, 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."
19. The Apex Court in the Bhagat Ram, AIR 2002 SC 1 (Supra) has further clarified the position in the following words :--
"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 that property. That would defeat the intent and purpose of Sub-section (2) of Section 15, which gives a special pattern of succession.
20. Since the object of Section 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 or 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 Section 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, Section 15(2)(b) will become meaningless and redundant. Notwithstanding, therefore, the fact that a female Hindu becomes a full-fledged owner of the property inherited by her from her husband, the property, on her death, will pass over to, and devolve upon, only those sons and daughters, whom she had begotten from her husband, whose property she had inherited and if there is no such issue or if such issue is not alive, then, the property, instead of devolving upon the sons or daughters whom she might have begotten from another person as husband, will devolve upon the heirs of her deceased husband, whose property she had inherited. Viewed from this angle, it becomes clear that since Jagat Kalita was not born to Mahesari out of her wedlock with Shyamrai Jagat Kalita, on Maheswari's death, did not become entitled to the property and, thus, when Jagat Kalita was not entitled to the property, question of the appellant, Dhanistha, succeeding to the property did not arise at all. The property, therefore, on the death of Maheswari, devolved upon the heirs of Shyamrai and when looked from this angle, the plaintiffs became the owners of the suit land as great grand children of Shyamrai. However, since there is no cross objection against the decrees granted by the learned Courts below, I am not inclined to disturb the findings and or the decree impugned in this appeal.
21. In the result and for the reasons discussed hereinabove. this appeal fails and the impunged judgment and decree are maintained.
22. No order as to costs.
23. Transmit the case records with a copy of this judgment and order to the Courts below immediately.