Orissa High Court
Afr Nilambar Behera vs Niranjan Barik & Others on 28 June, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 33 of 2003
[In the matter of an appeal under Section 100 of the Code of
Civil Procedure, 1908.
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AFR Nilambar Behera ...... Appellant
-Versus-
Niranjan Barik & others ..... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellants : M/s. Susanta Kumar Dash, S.K. Mishra,
Biswajit Mohapatra, Suryakanta Dash &
Miss. A. Dhalsamanta, Advocates
For Respondents: None
__________________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
28th June, 2024 SASHIKANTA MISHRA, J. This is an appeal by the plaintiff against the reversing judgment passed by the learned District Judge, Keonjhar on 28.09.2002 followed by decree in Title Appeal No. 23 of 2001 whereby the judgment passed on 04.04.2001 followed by decree by the learned Civil Judge (Senior Division), Keonjhar in Title Suit No. 30 of 1997 was set aside.
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2. For convenience, the parties are referred to as per their respective status in the Court below.
3. The present appellant as the plaintiff filed the suit for partition of the Schedule -B and C lands and for allotment of his legitimate shares. His case is that he and the original defendant Nos. 1 to 9 belong to one Hindu undivided joint family with Suna Behera being their common ancestor. The following genealogy depicts the relationship between the parties.
Suna Behera
Govinda Panchu
Narottam Natabar
Wife- Golap - Bhagaban Jagannath Kada Naga
(H) (W)Sambari (W)Boita
Niranjan
Bidyadhar
Nilambar Bairagi Hema Balaram
Dusa Guru Bhramar Saila
Sridhar Gurucharan Ankur Nukhuri
The common ancestor Suna Behera had two sons, Govinda and Panchu. Govinda had two sons, Narottam and Natabar. The plaintiff and defendant No.1 are the sons of Page 2 of 16 Narottam, while defendant No.2 is the daughter of Narottam. Natabar died leaving behind his widow, Golap and son Balaram. Golap again married one Niranjan Barik (defendant No.10) after death of Natabar. Balaram, the son of Natabar and Golap died a bachelor. On the other hand, defendant Nos. 3 to 9 and 12 to 16 are the descendants of Panchu. It is stated that after death of Balaram, son of Natabar, the widow Golap having remarried Niranjan Barik (defendant No.10) there is no one left to succeed to the interest of Natabar in respect of the suit property under Schedule- B and C. Subsequently, Golap also died. According to the plaintiff, Schedule B land is the ancestral property of the plaintiff and defendant Nos.1 to 9. Schedule C is also the ancestral property though the same was acquired by Natabar in the name of his wife Golap out of the joint family nucleus. It was wrongly recorded in the name of Golap. Since defendant No.10, the husband of Golap by her remarriage, laid claim over the share of Natabar and the plaintiff‟s request to defendant Nos. 1 to 9 for amicable partition was not acceded to, he filed the suit for partition.
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4. Of all the defendants, defendant No.10 alone contested the suit. According to him Schedule-C property is the exclusive property of Golap and it was not purchased out of the joint family nucleus. He and his three sons given birth to by Golap are the only survivors. Being the legal heirs of Golap, her undivided interest derived during her lifetime as widow of Natabar in the Schedule-B lands is liable to be devolved upon them. The plea of non-joinder of her three children was also taken.
5. On such pleadings the trial Court framed the following issues for determination.
"ISSUES
1. Is the suit maintainable?
2. Is there any cause of action to file the suit?
3. Is the suit barred by limitation?
4. Is the suit undervalued?
5. Is the suit bad for nonjoinder of necessary party?
6. Whether 'C' Schedule properties are liable for partition?
7. Whether D-10 has any right, title and interest over the suit land and is entitled to 1/4th share from 'B' schedule property?
8. To what relief/reliefs, if any, the plaintiff is entitled to?"
6. Issue nos. 5, 6 and 7 are the pivotal issues. On Issue No.5, the trial Court held that the three children born to Golap out of her marriage to Niranjan (defendant No.10) are not necessary parties to the suit and as such, the plea Page 4 of 16 of their non-joinder was negatived. On Issue No.6, the trial Court held that the „C‟ schedule property is the exclusive property of Golap and hence not liable for partition. On Issue No.7, the Court below, referring to the provisions of Section 15(2)(b) of the Hindu Succession Act came to the finding that defendant No.10 has no right, title and interest over the suit land and is not entitled to any share from the Schedule-B property.
7. Being aggrieved, defendant No.10 carried the matter in appeal to the Court of District Judge, Keonjhar in Title Appeal No.23 of 2001. The first appellate Court, after considering the grounds and contentions raised and taking note of the fact that the plaintiff had not filed any appeal or cross-objection against the finding under issue No.6, held at the outset that such finding had attained finality and need not be reopened. Similarly, the finding under Issue No.7 being also not specifically challenged by defendant No.10 - appellant, is not required to be reopened. Thus, the first appellate Court held that the only question for consideration was whether the children born to Golap out Page 5 of 16 of her marriage to defendant No.10 have any interest in Schedule-B property.
8. Analysing the evidence adduced by the parties, the first Appellate Court found that the plaintiff while deposing as P.W.-1 had admitted that three children namely, Indramani, Bidesi and Basumati were born to Golap being fathered by defendant No.10 and that they are alive. The finding of the trial Court that the said three children are entitled to 1/4th undivided interest in the Schedule-B land was noted by the First Appellate Court. It was also noted that despite such finding the trial Court turned around to hold that they are not necessary parties. The first appellate Court therefore, referred to the provisions under Section 15 of the Hindu Succession Act and the Mulla‟s principles of Hindu Law and the judgment of the Bombay High Court in the case of Rama Ananda Patil vs Appa Bhima Redekar1, to hold that the children of Golap fathered by defendant No.10 have undoubtedly an interest in the property of Golap as they are all her legal heirs as specified in entry (a) of Section 15(1) of the Hindu 1 AIR 1969 BOM 205 Page 6 of 16 Succession Act. Further, Golap being the widow of Natabar and a member of the undivided Hindu joint family of the plaintiff had an interest in the said property and on her death her children are entitled to succeed to her interest. Thus, the first appellate Court held that her three sons are necessary parties and the suit is bad for their non-joinder. The appeal was thus allowed and the judgment and decree of the trial Court was set aside.
9. Feeling aggrieved, the plaintiff has filed the present second appeal, which has been admitted on the following substantial questions of law.
"(I) Whether the children begotten through re-
marriage of widow are entitled to succeed to the property of the intestate ?
(II) Whether the lower appellate court is justified in holding that finding on Issue No.6 has attained finality in view of the provisions contained under Section XLI Rule-33 of the Code of Civil Procedure, 1908 ?"
10. Heard Mr. S.K. Dash, learned counsel appearing for the appellant. Be it noted that having regard to the grounds raised as also the fact that only defendant No.10 had contested the suit before the trial Court as well as the first appellate Court, this Court by order dated 19.07.2004, had directed notice to be issued only to respondent No.1 Page 7 of 16 (defendant No.10, Niranjan Barik). After considering the grounds raised in the present appeal, this Court did not find any reason to issue notice of the appeal to the other respondents.
11. Mr. Dash would argue that the first appellate Court committed an error in holding that the children of Golap born out of her second marriage are entitled to succeed to her property. It is submitted that Golap died before succession opened in respect of the property of the Hindu undivided family. The First Appellate Court, according to Mr. Dash has not referred to the provision under Section 24 of the Hindu Succession Act, which bars the heir of a widow remarrying as on the date of opening of the succession to succeed to her property. Moreover, the Hindu Succession (Amendment) Act, 2005 does not apply to those cases where succession opened earlier. Therefore, Mr. Dash forcefully contends that Golap being the widow of a predeceased son of a predeceased son is not entitled to any share in the Schedule-B property and such being the case, her children begotten through subsequent remarriage are also not entitled to succeed to such property. Mr. Dash Page 8 of 16 would further argue that the view of the first appellate Court that finding of the trial Court under Issue No.6 had attained finality is bad as the provision under Order 41, Rule 33 CPC should have been invoked to test the same even though no appeal or cross objection had been filed. In the process, complete justice between the parties would have been done.
12. Admittedly, Golap had originally married Natabar, the son of Govinda, the son of common ancestor, Suna. The couple had a son Balaram, who predeceased Golap. Natabar also predeceased her. Golap remarried Niranjan (defendant No.10). Three children were born out of such remarriage. The question whether the said three children have any interest over the Schedule-B property would depend upon whether Golap had any interest on such property in the first place. There is no dispute that Schedule-B property is the ancestral property of the plaintiff and defendant Nos.1 to 9. Golap, being the widow of Natabar is entitled to the share of Natabar. The objection raised is that she had remarried. At the first instance ignoring the fact of remarriage of Golap for a moment, it Page 9 of 16 would be worthwhile to examine her right to succeed to the ancestral property in ordinary course, as per the Hindu Succession Act. The relevant provisions are as follows:
"8. General rules of succession in the case of males.--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.
9. Order of succession among heirs in the Schedule.--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 entry shall be preferred to those in the third entry; and so on in succession.
10. Distribution of property among heirs in Class I of the Schedule.--The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules:
Rule 1.--The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.--The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3.--The heirs in the branch of each pre- deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4.--The distribution of the share referred to in Rule 3--Page 10 of 16
(i) among the heirs in the branch of the pre-
deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-
deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-
deceased daughter shall be so made that the surviving sons and daughters get equal portions.
13. Thus, Golap would have ordinarily been entitled to succeed to the share of her husband, Natabar in respect of the ancestral properties, i.e. Schedule B. Since Golap admittedly died intestate, the provision under Section 15 of the Hindu Succession Act would be applicable for the purpose of determining the succession of her legal heirs to such property. Admittedly, the son of Golap and Natabar (from the first marriage) namely, Balaram predeceased her. So there was no one left to succeed to the property of Golap from out of her first marriage after her death. Section 15 of the Hindu Succession Act reads as follows:
"Section-15. General rules of succession in the case of female Hindus.
(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 pre-deceased 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.Page 11 of 16
(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 pre-
deceased son or daughter) not upon the other heirs referred 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 pre-deceased 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."
14. Now, what would be the effect of her remarriage to defendant No.10. In this regard, reference can be had to the provision under Section 24 of the Hindu Succession Act.
"24. Certain widows remarrying may not inherit as widows. - Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried."
15. A bare reading of the provision makes it clear that the same applies only to the widows to succeed to such property if she has remarried on the date the succession opens. It is stated at the bar that Hindu Succession (Amendment) Act, 2005 came into force on Page 12 of 16 09.09.2005. Golap had admittedly married prior to such date. It is the settled law that the Amendment Act does not apply to cases where succession opened earlier.
16. Mr. Dash has argued that Golap is related to common ancestor (Suna Behera) as the widow of a predeceased son (Natabar) of a predeceased son (Govinda). This is not acceptable at all for the reason that the term „predeceased‟ used in Section 24 is with reference not to the widow but to the male ancestor. There is no evidence that Govinda had predeceased the common ancestor Suna or Natabar had predeceased Govinda. Natabar predeceasing Golap is not what is contemplated under Section 24 of the Hindu Succession Act. It only signifies opening of the succession. It is stated that Golap had remarried on the date of opening of the succession. By such time, by operation of Sections 8, 9 and 10, she had already succeeded to the property of her deceased husband as the sole surviving legal heir. To reiterate, in such factual scenario, Golap had already succeeded to the share of her deceased husband after his death more so, as after death of her son, Balaram, there was no one else to succeed. If Page 13 of 16 such is the case, then obviously the children born to her from her second marriage would have an interest over such property in view of the provision under Section 15(1)(a) of the Hindu Succession Act.
17. In the case of Rama Ananda Patil (supra), the Bombay High Court has held as follows"
"The expression „son‟ used in entry (a) has not been defined in the Act. It includes both the natural son and a son adopted in accordance with law relating to adoption among Hindus in force at the time of adoption. In case of a female intestate who had remarried after the death of her husbands or after divorce her sons by different husband would all be her natural sons and entitled to inherit the property left by the female Hindu regardless of the source of the property."
18. Thus, this Court fully concurs with the finding of the first appellate Court that the children of Golap fathered by defendant No.10 (upon her remarriage) have undoubtedly an interest in the property of Golap as they are all heirs of Golap as specified in entry (a) of Section 15(1) of the Hindu Succession Act, 1956. This Court further concurs with the finding that the sons of Golap, namely Indramani and Bidesi and her daughter Basumati are necessary parties to the suit and they not having been impleaded, the suit is bad for non-joinder. Page 14 of 16
19. In view of the above findings it is no longer necessary to consider whether the first appellate Court should have invoked the provision under Order 41 Rule 33 of CPC to examine the correctness of the findings of the trial Court in Issue No.6. This is being said for all the more reason that the finding of the trial Court on such issue having gone against the plaintiff, it was open to him to either file an appeal independently or to file cross-objection in the appeal preferred by defendant No.10. Not having done so at the relevant time, the plaintiff cannot overcome such glaring default on his part by seeking to invoke the provision under Order 41, Rule 33 of CPC. It is the settled position of law that the power under Rule 33 could be exercised only when the portion of the decree appealed against is to be inseparably connected with the portion not in the appeal for which justice cannot be done and a complete consistent decree cannot be passed unless the latter portion is as well interfered with. In the instant case, in view of the finding of the first appellate Court as concurred by this Court, the suit itself is bad for non- joinder of necessary parties and deserves to be dismissed Page 15 of 16 on such score alone. Under such circumstances, invoking the provision under Order 41 Rule 33 to examine the finding under Issue No.6 becomes entirely redundant. The contentions raised in this regard are therefore, not acceptable.
20. Thus, from a conspectus of the analysis of facts and law and the discussion made thereon, this Court is of the view that the impugned judgment passed by the first appellate Court does not warrant any interference whatsoever.
21. Resultantly, the second appeal being devoid of merit is therefore dismissed. There shall be no order as to costs.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack The 28th June, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Jul-2024 19:53:59 Page 16 of 16