Orissa High Court
Sashidhar Barik And Others vs Ratnamani Barik And Another on 19 June, 2014
Equivalent citations: AIR 2014 ORISSA 202, (2015) 2 CURCC 135, (2014) 143 ALLINDCAS 375 (ORI), (2014) 2 CLR 420 (ORI), (2014) 118 CUT LT 544
Author: R. Dash
Bench: Raghubir Dash
ORISSA HIGH COURT: CUTTACK
R.S.A. NO.83 OF 2005
From the judgment and decree dated 18.01.2005 and 31.01.2005,
respectively, passed by Sri Srikanta Nayak, District Judge, Keonjhar
in R.F.A. No.44 of 2004 confirming the judgment and decree dated
29.07.2004 and 13.08.2004, respectively, passed by Sri R. Meher,
Civil Judge (Senior Division), Keonjhar in Title Suit No.53 of 2002.
__________
Sashidhar Barik and others ...... Appellants
Versus
Ratnamani Barik and another ...... Respondents
For Appellants : M/s. A.K. Mohapatra, P. Jena,
S. Jena & S. Das.
M/s. P.K. Misra, B.M. Pattanaik-2,
R.N. Mishra & H. Muduli.
For Respondents : Sri P. Patnaik, G.M. Rath,
M.K. Mishra, S.K. Patnaik,
S.S. Padhy & A.K. Mohanty.
(For Respondent No.1)
M/s. B.H. Mohanty, R.K. Nayak,
D.P. Mohanty, B. Das &
T.K. Mohanty
(for Respondent No.2)
PRESENT :
THE HONOURABLE MR. JUSTICE RAGHUBIR DASH
Date of hearing : 15.05.2014 Date of judgment : 19.06.2014
R. DASH, J.This Second Appeal is against the judgment and decree dated 18.01.2005 and 31.01.2005, respectively, passed by the learned District Judge, Keonjhar in R.F.A. No.44 of 2004 confirming the judgment and decree dated 29.07.2004 and 13.08.2004, 2 respectively, passed by the learned Civil Judge (Senior Division), Keonjhar decreeing the plaintiff's suit bearing T.S. No.53 of 2002.
2. Respondent No.1-Ratnamani Barik is the plaintiff. She filed the suit for declaration and perpetual injunction. The subject matters of the suit are the properties mentioned in schedule 'Ga' and 'Gha' of the plaint, hereinafter referred to as the suit properties.
3. Facts not in dispute are as follows:
One Lata first married to Hrushi, who died prior to 1956 leaving behind his widow (Lata) and daughter Ratnamani (the plaintiff) as his successors. Ratnamani has got only one daughter, namely, Banabasi, who is arrayed as defendant No.1 in the suit. After the death of Hrushi, his widow Lata married to Kalakar, who also died prior to 1956 leaving behind Lata as his only successor-in- interest. Kalakar had one brother, namely, Kantha. D-2 to D-12 are the successors-in-interest of Kantha. Here, it is pertinent to mention that both the husbands of Lata belong to two of the four branches of the common ancestor late Ananta Barik. After the death of Kalakar, his widow Lata filed O.S. No.53 of 1960 and got the share of Kalakar allotted to her and, getting delivery of possession thereof, she continued to remain in possession of the same. Plaint schedule 'Kha' properties are part of the properties she got in the said partition. During her life time Lata, for her legal necessity, had sold plaint schedule 'Kha' land to different persons. However, since those 3 properties are not in dispute, the purchasers thereof have not been made parties to the suit.
4. Against the aforestated backdrop, it is the plaintiff's case that plaint schedule 'Ga' land, which is also a part of the properties Lata had got in the partition, has been bequeathed by Lata under an unregistered Will executed in favour of Banabasi (D-1), who is Lata's grand-daughter and on the strength of that Will D-1 has been in possession and enjoyment of schedule 'Ga' property. The residue of the property Lata had got in the partition is the schedule 'Gha' property. It is plaintiff's case that being the natural daughter of Lata the plaintiff has succeeded to the property in schedule 'Gha' in respect of which Lata has died intestate. After the death of Lata, it is claimed, plaintiff has been in possession of schedule 'Gha' properties. It is alleged that D-2 to D-12, being agnates of Kalakar (Lata's second husband), created disturbance in plaintiff's possession over the suit land. Hence, the suit for declaration of her right, title and interest in respect of schedule 'Gha' properties. The plaintiff has also sought for declaration of her title over schedule 'Ga' land in case no title is found to have passed on to D-1 under the aforestated Will.
5. D-1 filed W.S. supporting plaintiff's stand.
6. D-2 to D-12 in their joint written statement have disputed the execution of any Will by Lata in favour of D-1. They also dispute plaintiff's claim that she has succeeded to the properties that 4 Lata had got in partition under the decree passed in O.S. No.53 of 1960. They claim that Kalakar, the second husband of Lata, having died prior to 1956 and the present plaintiff being not the daughter of Kalakar, the property of Kalakar, which was allotted to Lata, reverts back to D-2 to D-12 who are, admittedly, the heirs of Kalakar's elder brother-Kantha. Their further assertion is that Lata, who was being taken care of and maintained by D-2 to D-12, has relinquished the suit properties in favour of D-2 to D-12. They also take the stand that the Will in question being not genuine, D-1 cannot derive any title in schedule 'Ga' properties on the basis of the Will. D-2 to D-12 claim that they have acquired right, title and interest over the suit properties by way of reversion.
7. Learned courts below have recorded concurrent findings that by operation of Section 14 of the Hindu Succession Act, 1956 (in short, the Act) Lata became full owner in respect of the property she got in O.S. No.53 of 1960 and plaintiff being Lata's natural daughter through her first husband would succeed to all the properties in respect of which Lata died intestate, irrespective of the fact that the source of the property is Lata's second husband, who is not the father of the plaintiff.
8. The Second Appeal is admitted on the following substantial question of law:
Whether daughter of the first husband of a Hindu female inheriting property of her second 5 husband can be taken as 'daughter' within the meaning of Section 15(2)(b) of the Hindu Succession Act, 1956?
9. Before entering into the rival contentions of the parties it is felt useful to reproduce Section 15 of the Act for reference:-
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.
(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 to 6 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.
10. Learned counsel for the Appellants argues vehemently, raising the contention that in view of the principles stipulated in Section 15(2)(b) of the Act, the suit properties inherited by Lata having come from the source of her second husband-Kalakar and both Kalakar and Lata having died without any issue begotten out of their wedlock, the suit properties would devolve upon the Appellants, who are undisputedly heirs of late Kalakar.
Learned counsel for the Respondents, on the other hand, submits that plaintiff-Respondent No.1 being the natural born daughter of Lata, the property left behind by her is to be succeeded by her natural born daughter as per the principle laid down in Section 15(1)(a) of the Act and that the principles contained in Section 15(2) are not at all attracted.
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11. Both sides have cited judgments to support their respective contentions. In AIR 2003 Gauhati 92 (Smt. Dhanistha Kalita -Vrs.- Ramakanta Kalita and others), which is relied on by the Appellants, the question to be determined was whether the expression "son and daughter" used in clause (b) of Section 15 (2) of the Act includes the son and daughter of a female Hindu, whom she had begotten from a husband other than the husband, whose property she had inherited. Before going to answer the said question, His Lordship referred to the reasons for incorporating Section 15(2) in the Act, as assigned by the Joint Committee in Clause 17 of the Hindu Succession Bill, 1954 which 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."
Thereafter, His Lordship referred to the following observation of the Hon'ble Apex Court in Bhagat Ram -Vrs.- Teja Singh, reported in AIR 2002 SC 1:
"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 8 that property. That would defeat the intent and purpose of sub-section (2) of Section 15, which gives a special pattern of succession."
and then His Lordship proceed to make the following observation answering the question in the negative:
"Since the object of S. 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 and 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 S. 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 S. 15(2)(b) will become meaningless and redundant."
12. On behalf of the Respondent No.1 one judgment of Himanchal Pradesh High Court reported in AIR 1985 HP 8 (Roshan Lal and another -Vrs.- Dalipa) has been cited in which an identical question has been answered in the affirmative. In that case, the Respondent was the son of one Pari born during her wedlock with her first husband Kithu. Subsequently, after the death of Kithu, Pari contacted a second marriage with Punnu, who died intestate in 1959 leaving behind Pari. No issue was born during the second marriage 9 of Pari. The Respondent filed a suit claiming the share of Punnu. The defendants, who are the collaterals of Punnu, resisted the suit on the ground, inter alia, that the Respondent being the son of Kithu could not claim to succeed to the estate of Pari. The High Court of Himanchal Pradesh held that since the Respondent is found to be the son of Pari, sub-section (2) of Section 15 of the Act is not attracted in as much as the said section operates 'in the absence of any son or daughter of the deceased'. It is further observed that for the purposes of succession to Pari's estate under Section 15(1)(a) of the Act it is immaterial whether the Respondent was the off-spring of the marriage of Pari with Kithu or of her illicit relationship with Punnu.
13. In Keshri Parmai Lodhi and another -Vrs.- Harprasad and others, reported in AIR 1971 MP 129, the question to be answered was whether the word 'son' should be restricted to the son of the husband from whom the Hindu female inherited the property or it should include sons of the Hindu female irrespective of whether they are born of the husband whose property is in dispute. While answering this question, His Lordship observed that from the language used in sub-section (1) and (2) of Section 15 of the Act it is clear that the intention of the Legislature is to allow succession of the property to the sons and daughters of the Hindu female and only in the absence of any such heirs the property would go to the husband's heirs.
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In the Text Book : Principles of Hindu Law by D.F. Mulla, it is commented on Section 15(1)(a) of the Act that in case of a female intestate who had remarried after the death of her husband or after divorce her sons by different husbands would all be her natural sons and entitled to inherit the property left by the female Hindu regardless of the source of the property.
14. The Gauhati High Court's conclusion that son or daughter of a female will mean the son or daughter begotten by her from the husband whose property she has inherited, is based on the observations made by the Hon'ble Apex Court in Bhagat Ram's case (supra). This supreme Court judgment has been cited by both the parties. Learned counsel for the Appellants puts much stress on the Hon'ble Apex Court's observation that the source from which the Hindu female inherits the property is always important, otherwise, persons who are not even remotely related to the person who originally held the property would acquire rights to inherit the property and that would defeat the intent and purpose of sub-section (2) of Section 15. In my considered view, the said observation of the Hon'ble Apex Court applies to a situation where the female Hindu has died intestate leaving behind no issue born from her womb.
15. Both sides have cited the judgment of the Hon'ble Supreme Court in Lachman Singh -Vrs.- Kirpa Singh and others, reported in AIR 1987 Supreme Court 1616. In this judgment it 11 has been decided that once a property becomes absolute property of a female Hindu it shall devolve first on her children (including children of the predeceased son and daughter) as provided in Section 15(1)(a) of the Act and then on other heirs subject only to the limited change introduced in Section 15(2) of the Act. It is further decided that the step sons or step daughters of the female Hindu will come in as heirs only under Clause (b) of Section 15(2) of the Act. It is further observed that the rule of devolution in Section 15 of the Act applies to all kinds of properties left behind by a female Hindu except those dealt by Clause (a) and (b) of Section 15(2) which makes a distinction as regards the property inherited by her from her parents and the property inherited from her husband or father-in-law and that too when she leaves no sons and daughters, including children of predeceased sons and daughters. In the case at hand, if Lata's daughter born to her first husband is considered to be her daughter coming within the expression 'daughter' appearing in Section 15 of the Act, then sub-section (1) of Section 15 of the Act would govern the situation. In Lachman Singh's case (supra), Hon'ble Supreme Court has observed that the word 'sons' in Clause (a) of Section 15(1) of the Act includes (i) sons born out of the womb of a female by the same husband or by different husbands including illegitimate sons too in view of Section 3(j) of the Act and, (ii) adopted sons, who are deemed to be sons for purposes of inheritance. What has been stated about 12 the expression 'sons' in Clause (a) of Section 15(1) of the Act can equally be stated about the expression 'daughters' appearing in Section 15(1)(a) of the Act. Therefore, the inevitable conclusion is that being a daughter born out of the womb of Lata by her first husband the plaintiff-respondent No.1 comes within the expression 'daughters' appearing in Section 15(1)(a) of the Act and with the application of Rule-1 of Section 16 of the Act, the Appellants, who are coming within the expression 'heirs of the husband', are to be kept from succeeding to the properties left behind by Lata even though she inherited the same from her second husband-Kalakar and he is not the father of plaintiff-respondent No.1.
Therefore, the learned courts below have rightly held that plaintiff-Ratnamani succeeded to the suit properties consequent upon the death of her mother Lata and that the Appellants-defendant Nos.2 to 12 are not entitled to inherit the property of Lata.
16. In the result, the Second Appeal being devoid of merit is dismissed on contest but in the facts and circumstances without any cost. The interim order dated 24.10.2005 staying further proceeding in Execution Case No.26 of 2005 stands vacated.
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R. Dash, J.
Orissa High Court, Cuttack The 19th June, 2014/D. Aech