Bombay High Court
Dudhnath Kallu Yadav vs Ramashankar R.Yadav And 24 Ors. And ... on 12 January, 2018
Author: S.C.Gupte
Bench: S.C. Gupte
Priya 1 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.495 OF 2017
IN
SUIT NO.2219 OF 2000
Yansh Bahadur Sabhajeet Yadav ... Applicant
In the matter between:-
Dudhnath Kallu Yadav ... Plaintiff
Vs.
Ramashankar Ramadhar Yadav and ors. ... Defendants
WITH
SUIT NO. 2219 OF 2000
WITH
NOTICE OF MOTION NO. 381 OF 2015
IN
SUIT NO. 2219 OF 2000
Dudhnath Kallu Yadav ... Plaintiff/Applicant
Vs.
Ramashankar Ramadhar Yadav and ors. ... Defendants
----
Mr.Vansh Bahadur Sabhajeet Yadav Applicant in person present.
Mr.Ramchandra Yadav with Mr. Netaji Gawade i/by Mr. Sanjay
Udeshi and Company for the Plaintiff.
Mr.Omar Khaiyam Shaikh with Mr. Chetan Mendadkar for
Defendant No. 5.
Mr.Satish Upadhyay for Defendant No. 6B.
Ms.Madhumita S. Yadav i/by Mr. J.S.Yadav for Defendant Nos. 9
to 12.
Mr.Rakesh K. Singh for Defendant Nos. 16 to 20.
Mr. Vedchetan Patil for Defendant No. 21.
Mr. Vijayshankar R. Yadav, C.A. of Defendant No. 4 present in
person.
----
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Priya 2 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o
CORAM : S.C. GUPTE, J.
DATE :12 JANUARY 2018.
ORAL JUDGMENT :
. Heard learned counsel for the parties.
2. This chamber summons is taken out in a partition suit involving partition of properties, which are said to be jointly owned by the parties. The Applicant presses only for prayer clause
(a).
3. During the pendency of the suit, Defendant No.14, who is said to be one of coparceners having right to the ancestral property, expired. His heirs were brought on record as Defendant Nos. 14A to 14D. By an order dated 12 December 2011, the suit was ordered to be dismissed as against those defendants, who had remained unserved. Since Defendant Nos.14A to 14D, who were added during the pendency of the suit, were not served, the suit against them stood dismissed. This fact was noted by the court in its order dated 3 November 2014. The present chamber summons is taken out by a third party applicant, who claims to be a step-son ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 ::: Priya 3 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o of Defendant No.14. It is his case that after the death of Defendant No.14, as much as Defendant Nos. 14A to 14D, he should also have been brought on record, as a party defendant, in his capacity as a legal heir of deceased Defendant No.14. He accordingly seeks an impleadment. He also claims further reliefs including a decree for separate share and possession of 1/9th share of original Defendant No.14 and stay of redevelopment of three buildings, which are part of the suit property.
4. It is difficult to see how a step-son of deceased-Defendant No.14 can be said to be a legal heir of the deceased entitled to defend the present suit, which is for partition of joint family property co-owned by the deceased. The Applicant, who appears in person, relies on the definition of "child" under clause (15B) of Section 2 of the Income Tax Act, 1961. Learned counsel submits that "child" in relation to an individual includes the latter's step- child as well as adopted child under this definition. Learned counsel submits that since the word "son" is not defined under the Hindu Succession Act, the definition of "child" under the Income Tax Act should be used for construing the expression "son" ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 ::: Priya 4 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o appearing in the former Act.
5. The claim is clearly preposterous. In the first place, the Applicant must show that he is entitled to succeed to the estate of the deceased either as a relative specified in class-I and if there be no such relative, then as a relative specified in class-II, of the schedule under Hindu Succession Act read with Section 8 of that Act. It is important to note that the controversy involves a claim to the property of a male Hindu dying intestate. The schedule to the Hindu Succession Act refers to heirs in class-I and class-II within the meaning of Section 8 of that Act. A son is included in class-I of the schedule. The Applicant, as son of the wife of the deceased from her first marriage, cannot claim as a son of the deceased. The expression "son" appearing in the Hindu Succession Act does not include a step-son. The expression "son" not having been defined under the Hindu Succession Act, the definition of "son" under the General Clauses Act may be appropriately referred to. In clause (57) of Section 2 of the General Clauses Act, the expression "son" includes only an adopted son and not a step-son. Even otherwise "son" as understood in common parlance means a ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 ::: Priya 5 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o natural son born to a person after marriage. It is the direct blood relationship, which is the essence of the term "son" as normally understood.
6. Relying on the judgment of the Supreme Court in the case of K.V.Muthu Vs. Angamuthu Ammal1, the Applicant, however, submits that in legal parlance the expression "son" may have a wider connotation, not only including a natural son, but even others such as a grand-son, etc. The Supreme Court has made it clear in K.V.Muthu's case that having regard to the provisions of any particular law, the expression "son" may have a wider connotation; it may in an appropriate case include even a son's son, namely, a grand-child, and where the personal law permits adoption, even an adopted son; even an illegitimate son may be treated as a "son" in certain cases. The Supreme Court in K.V.Muthu's case did not mean to define the term "son" generally, but simply underscored the point that the term "son", was a flexible term; its true meaning, like the term "family", would depend upon the context in which it is used. Since Hindu Law 1 (1997) 2 Supreme Court Cases 53 ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 ::: Priya 6 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o permits adoption, the expression "son" for the proposes of the Hindu Succession Act would include even an adopted son. The word "son" appearing in class-I of the schedule to that Act would thus include an adopted son but there is clearly no warrant for including a step-son within the meaning of the expression "son" used in class-I of the schedule. The context in which the term "son" is used in the schedule does not admit of a step-son being included within it.
7. There is no warrant for using the definition of the word "child" under the Income Tax Act for the purposes of construing the expression "son" appearing under the Hindu Succession Act. The Applicant submits that Income Tax Act being a Central Act, the definition of "child" thereunder must be read into the Hindu Succession Act, which is but another Central Act. There is no such law warranting incorporation of a definition under one Central Act into another, particularly in the face of a definition of the expression being provided in the General Clauses Act.
8. The Applicant relies on a Division Bench judgment of this ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 ::: Priya 7 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o court in the case of Rama Ananda Patil Vs. Appa Bhima Redekar2, in support of his submission that a step-son is entitled to succeed to the property of the deceased. The Judgment of this court in Rama Patil's case was rendered in an altogether different set of facts. The application to inheritance in that case was by a son through the first husband of a deceased female Hindu. The property held by the deceased was inherited by her as a sole heir of her second husband. After her death, the applicant claimed to succeed to her property in preference over a nephew and a grand nephew of the second husband. The claim was accepted by our court. This judgment has no application to the facts of our case. In the first place, the succession is claimed here not to the estate of the Applicant's mother, but to the estate of his mother's second husband. Succession to the estate of a male hindu can only be claimed under Section 8 of the Hindu Succession Act read with the schedule under that Act which, as noted above, provides for two classes of heirs. Also as noted above, the Applicant does not fall under either of these classes and is not entitled to succeed to the estate of the deceased male hindu, namely, defendant No.14. Even 2 AIR 1969 Bom. 205 ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 ::: Priya 8 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o otherwise this judgment is considered by the Supreme Court in the case of Lachman Singh Vs. Kripa Singh and ors. 3. The Supreme Court in that case held that a step-son or a step-daughter of a female Hindu dying intestate are not covered by the expression "son" or "daughter" in clause (a) of sub-section (1) of Section 15 of the Hindu Succession Act. They could merely be said to be falling under either clause(b) of sub-section(1) of Section 15 or sub-section(2) of Section 15. In any event, as noted above, there is no warrant for construing the provisions of Section 15, either sub-section (1) or (2) or any of the clauses therein, for our purposes. In our case, the applicable provision is Section 8 of the Hindu Succession Act.
9. There is accordingly no merit in the Applicant's claim as a legal heir of the deceased-Defendant No.14. He cannot claim to defend the suit as such legal heir. (The suit, as noted above, has already been dismissed against the legal heirs of deceased Defendant No.14, who were brought on record.) 3(1987) 2 Supreme Court Cases 547 ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 ::: Priya 9 23 chs 495-17 in s 2219-00 with s 2219-00 with nms 381-15-o
10. The chamber summons is accordingly dismissed. The Applicant shall pay costs of the chamber summons quantified at Rs.50,000/-. The costs shall be apportioned in 5 sets of Rs.10,000/- each and paid to (i) Defendant Nos. 16 to 20, (ii) the Plaintiff, (iii) Defendant No.21, (iv) Defendant No.4 and (v) Defendant Nos. 9 to 12, by drawing cheques in favour of their respective advocates.
11. The Applicant applies for stay of this order. Insofar as dismissal of the chamber summons is concerned, there is no question of any stay. Insofar as costs are concerned, it is ordered that the costs may be paid within a period of 6 weeks from today.
12. The suit to appear on board for directions on 5 February 2018.
(S.C.GUPTE J.) ::: Uploaded on - 31/01/2018 ::: Downloaded on - 20/05/2018 23:03:58 :::