Orissa High Court
Smt. Ambika Swain vs Additional Commissioner Of Settlement ... on 18 October, 2000
Equivalent citations: 2001(I)OLR205
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. This writ application is directed against the decisions passed by the Consolidation authorities including that of the revisional authority as per Annexure-7.
2. For resolving the dispute raised in the present writ application, it is not necessary to notice the entire genealogy. Ranka, the natural son of Mana was admittedly adopted to Nidhi. The petitioner and present opposite party No. 13 are the daughters of Ranka, whereas opposite party No. 3 is the surviving son. Opposite parties 9 to 12 are the successors-in-interest of Hadibandhu, the other son of Ranka. Poka was the widow of Ranka. The dispute raised in this writ application is confined to the property of Ranka. There is no dispute that after death of Ranka, his properties are to be inherited by his widow Poka, two sons and two daughters, as described above. On the death of first son, obviously his share in the property has devolved upon the opposite parties 9 to 12. The petitioner claimed that the properties described to have fallen to the share of Ranka in Annexure-1, the registered deed of partition, are his self-acquired property and as such the petitioner shall have 1/5th share in such property. The adjudicating authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act have come to the conclusion that the aforesaid property was ancestral property. It has to be first ascertained as to whether the property was the ancestral property or the separate property of Ranka. For the aforesaid purpose, the counsel for the petitioner has placed reliance upon the recital in Annexure-1 and contended that the said property had been gifted to Ranka by his adoptive father Nidhi. Gift of immovable property can be effected by executing registered deed of gift duly attested by two witnesses, as required under section 122 of the Transfer of Property Act. In the present case, it is not disputed that there is no such deed of gift. The counsel for the petitioner has mainly relied upon the recital where at one place it has been mentioned that Nidhi Nayak had effected a Hebanama. In the absence of any deed of gift, the mete recital is not sufficient to come to a conclusion that, in fact, there was any gift by Nidhi. On the other hand, in the very same Annexure-1, there is clear recital that the property had been allotted to Ranka towards his share. The property allotted to a person in partition becomes the joint family property in his hands so far as he and his sons are concerned although it is treated as separate property so far as the partitioning co-sharers are concerned. In the present case, a perusal of Annexure-1, the registered deed of partition dated 2-8-1926, clearly indicates that property had been allotted to Ranka towards his share. Thus, so far as Ranka's children are concerned, the property obtained by Ranka at the partition was the joint family property. The conclusion of the Consolidation authorities that the property was not the separate property, therefore, appears to be correct,
3. Even though the aforesaid contention of the learned counsel for the petitioner is not accepted, the submission of the counsel for the petitioner that the extent of shares of various persons has not been properly calculated. From the materials on record and at the time of argument, it was admitted that at the time of death of Ranka, he left behind his widow Poka, one son Kartik (opposite party No. 8), two daughters Ambika and Satyabhama alias Tikili. (petitioner and opposite party No. 13 respectively.) as well as the children of the predeceased son Hadibandhu (successors of Hadibandhu have been impleaded as opposite parties 9, 10, 11 and 12). In respect of the properties allotted to Ranka under Annexure-1, the shares of the successors are to be ascertained. Since Ranka was a member of the joint family consisting of himself and his children and grand-children, succession to the property has to be carved out in accordance with the provisions contained in section 6, read with section 8 of the Hindu Succession Act. Section 6 provides as follows :--
"6. Devolution of interest in coparcenary property..-
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship Explanation 1.--For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether, he was entitled to claim partition or not.
Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
4. It is not disputed that Ranka had left behind Class-I female heirs, namely his widow and two daughters. Therefore, applying the proviso to section 6, the interest of Ranka in the property allotted to him under Annexure-1 has to be ascertained and it must be deemed as if immediately before his death there was a partition in the family. Since Ranka had one son and grandsons through another predeceased son and widow at the time of death, it must be taken that Ranka had 1/4th interest in the said property and 1/4th interest each had devolved upon his widow Poka, the heirs of Hadibandhu and the surviving son Kartik. The succession in acordance with section 8 has to take place in respect, of 1/4th interest of Ranka in such property. Thus, Poka, the branch representing Hadibandhu, Kartik and the two daughters inherited in equal share the 1/4th interest of Ranka. In other words, the two daughers inherited 1/20th share each in the said property, whereas the widow Poka, Kartik, the surviving son and the branch of Hadibandhu each had 3/10th share. It is not disputed that during pendency of the revision, Poka had expired and her 3/10th share has to devolve upon Kartik, the branch of Hadibandhu and the two daughters. Thus, Ambika was entitled to receive 3/40th share. In other words, in all, she is entitled to 1/8th share. Similarly, the other daughter is entitled to 1/8th share, Kartik is entitled to 3/8th share and the branch of Hadibandhu is entitled to balance 3/8th share in the properties which had fallen to the share of Ranka, as described in Annexure-1. Such property which had fallen to the share of Ranka as per Annexure-1 is now to be partitioned among the petitioner and opposite parties 8 to 13 as per the shares now indicated. The Consolidation authorities are directed to carve out the shares of petitioner and opposite parties accordingly.
The writ application is accordingly partly allowed. There will, however, be no order as to costs.
5. Writ application partly allowed.