Orissa High Court
Afr Arnapurna Pradhan vs Trinath Barik & Ors on 27 September, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA NO.301 OF 2014
(From the judgment dated 07.05.2014 passed by the Addl.
District Judge, Sundargarh in RFA No.11/14 of 2012-14 varying
the judgment dated 18.02.2012 and decree dated 28.02.2012
passed by the Civil Judge (Senior Division), Sundargarh in C.S.
No.219 of 2009 )
AFR Arnapurna Pradhan ...... Appellant
-versus-
Trinath Barik & Ors. ...... Respondents
Advocates appeared in the case through hybrid mode:
For Appellant : Mr. C.A. Rao, Sr. Advocate
with M/s. A.K. Nanda, G.N. Sahu
and T.P. Tripathy Advocates
For Respondents : Mr. P.K. Rath, Sr. Advocate
with M/s S.K. Mohapatra, R.N. Parija,
A.K. Rout, S.K. Patnaik, P.K. Sahoo
and A.Behera, Advocates
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
27.09.2024 Sashikanta Mishra, J. This is an appeal by the plaintiff against a reversing judgment passed by the learned Addl. District Judge, Sundargarh in RFA No. 11/14 of 2012-14 on Page 1 of 30 07.05.2014 followed by decree, whereby the judgment dated 18.02.2012 followed by decree passed by the learned Civil Judge (Sr. Division), Sundargarh in Civil Suit No. 219 of 2009 was partly set aside.
2. For convenience, the parties are referred to as per their respective status before the trial Court.
3. The following genealogy shows the relationship between the parties.
Geneology
Laxman Barik Ghasia Barik
= Jambubati (W)
Prahallad Kiabati (Daughter) Trinath
= Sumitra (W) = Narayan (Defendant No.2) (Grand-son)
(Defendant No.1)
Rameswar (Remarriage) Pradyumna (son)(Defendant No.3)
Arnapurna (Plaintiff)
4. Suit Land
The suit land pertains to land measuring Ac.5.57 dec. under Khata No.65 and land measuring Ac.0.11 dec. under Khata No.67 in village Girisuan. Page 2 of 30
5. Plaintiff's case:
The suit land under khata no.65 was recorded in the name of the mother of the plaintiff Sumitra Barik and her grand-mother Jambubati Barik in the Hal Settlement operation. Land under khata no.67 stands recorded in the name of her mother Sumitra Barik alone. Laxman died leaving behind his son-Prahallad, daughter-Kiabati and widow-Jambubati. Kiabati died leaving behind her husband-Narayan (defendant no.2) and son-Pradumna (defendant no.3). Prahallad died leaving behind his widow- Sumitra and mother-Jambubati. Prahallad and Sumitra had no issue. After the death of Prahallad, Sumitra married another person named Rameswar. The plaintiff, namely, Annapurna was begotten out of such remarriage. It is claimed that after the death of Sumitra, the plaintiff, being her only legal heir, succeeded to the properties of her mother. The defendant no.1 filed mutation cases before Tahasildar, Hemgir being Misc. Cases No. 387 of 2004 and No.388 of 2004 for mutation of the suit properties in his name on the ground that he is the adopted son of Sumitra. The Tahasildar allowed the mutation applications in favour Page 3 of 30 of defendant no.1, but without the knowledge of the plaintiff. After coming to know of the above, the plaintiff filed appeal being M.A. No.5 of 2006 before the Sub- Collector, Sundargarh, which came to be dismissed on the ground that Sumitra having remarried, the plaintiff would have no right, title and interest over the properties belonging to the family. The plaintiff, however, claims to be possessing the suit properties. After dismissal of the appeal thus, the plaintiff filed the suit for a declaration that she is the only legal heir and successor of Sumitra Barik, as also a declaration that defendant no.1 is not the adopted son of Sumitra and not entitled to succeed to her properties.
6. Defendant No.1's case:
The defendant no.1 in his written statement admitted the basic facts averred in the plaint relating to the relationship between the parties. In addition, he claimed that being the nephew of Sumitra, as he was adopted by her on 22.05.1979 in the presence of relatives and villagers, which fact was acknowledged on a plain paper adoption deed, he possessed the properties of Prahallad Page 4 of 30 and looked after his adoptive mother Sumitra. Subsequently, Sumitra left the village voluntarily and married Rameswar Das and gave birth to the plaintiff. Further, Sumitra abandoned all her properties in the suit village and cut off all relationship with her first husband‟s family and resided in the house of Rameswar till his death. Being the adopted son of Sumitra, defendant no.1 succeeded to her landed properties and after her death he got the same mutated in his favour, as per orders passed in the mutation cases filed by him before the Tahasildar, Hemgir. The plaintiff‟s appeal against the orders of the Tahasildar was dismissed. Since the properties under khata no.65 are the ancestral properties of all the defendants and Sumitra had remarried, she is not entitled to the same. Moreover, the plaintiff being the daughter of Rameswar also has no right, title and interest over the landed properties. Despite not having any right or title over the suit land, the plaintiff has sold away lands measuring Ac.4.11 dec. from khata no.65 to one Basanta Kumar Naik by a registered sale deed no.93 of 2006. Said Basanta Kumar Naik has, however, not taken possession of Page 5 of 30 the land and it continues to be possessed by defendant no.1.
Defendant nos.2 and 3 though appeared before the trial Court, yet they remained absent subsequently, for which they were set ex parte.
7. Issues framed by the Trial Court:
Basing on the rival pleadings, the trial Court framed the following issues for determination:-
"(I) Whether the suit is maintainable?
(II) Whether the plaintiff has cause of action for filing the suit?
(III) Whether the suit is barred for non- joinder of necessary parties?
(IV) Whether the Plaintiff is the only legal heir of Sumitra Barik and she is entitled to succeed to the properties of Sumitra ?
(V) Whether Sumitra had adopted defendant No. 1 as her son on 22-5-79 and he is entitled to succeed the properties of Sumitra Barik?
(VI) Whether the plaintiff has right, title and interest over the landed properties under Khata No.55 and 67 of village Girisuan?
(Strike out on 25.11.2011) (VII) To what other relief, the plaintiff is entitled?"
8. Findings of the trial Court:
Taking up issue nos. (IV) & (V) together for consideration at the outset, the trial Court first considered Page 6 of 30 whether defendant no.1 is the adopted son of Sumitra, as claimed by him. After analyzing the documentary evidence, including the plain paper will deed dated 22.05.1974 (Ext.B) and the oral evidence adduced by both parties, the trial Court disbelieved the claim of adoption mainly on the ground that defendant no.1 continued to be shown as the son of his natural father in all records and has been living in his natural father‟s house. The trial Court further found that the giving and taking of the child was not proved to satisfaction.
8.1. On the question whether the plaintiff is entitled to succeed to the properties of Sumitra, the trial Court held that after enactment of the Hindu Succession Act, 1956, Sumitra became the absolute owner of the properties succeeded by her from her husband. Such being the position, her re-marriage cannot forfeit her absolute right over the properties. On such basis and on the finding that the plaintiff is the only legal heir and successor of Sumitra, the trial Court held that she alone is entitled to succeed to the properties of her mother.
Page 7 of 30 8.2. The principal issues being determined thus, all remaining issues were answered in favour of the plaintiff and the suit was decreed by granting all the reliefs claimed by her.
9. Being aggrieved, defendant nos.1 and 3 carried the matter in appeal. The First Appellate Court framed two issues (sic., points) for determination.
"(a) Whether respondent No.1 is the adopted son of the said Sumitra?
(b) Whether the plaintiff being the daughter of the said Sumitra through her marriage to one Rameswar Das is to succeed to her properties as her only legal heir?"
9.1. Findings of the First Appellate Court:
In answering the first point, the First Appellate Court, after analyzing the oral and documentary evidence found that the trial Court had rightly held that defendant no.1 was never adopted by Sumitra during her widowhood. On the question of succession of the suit properties of Sumitra by the plaintiff, the Court heavily relied upon the judgment of the Supreme Court rendered in the case of Bhagat Ram v. Teja Singh,1 and a judgment of the 1 AIR 2002 SC 1 Page 8 of 30 Gauhati High Court rendered in the case of Smt. Dhanistha Kalita v. Ramakanta Kalita & Ors.2.
Basing on such decisions, the Court held that the plaintiff is not entitled to succeed to the suit properties and the same would revert back to the legal heirs of Prahallad, the first husband of Sumitra, if there are any. On such findings, the judgment and decree of the trial Court was thus, partly reversed with the claim of defendant no.1 being allowed with the appropriate declaration.
10. Being aggrieved, the plaintiff has approached this Court in the present appeal, which has been admitted on the following substantial questions of law:-
"(1) Whether the judgment of the learned Lower Appellate Court that the property inherited by a Hindu female from her first husband shall revert back to the legal heirs of her first husband and not to the issues of the female born through the second husband is vitiated in law being contrary to Section 15 (2) (b) of the Hindu Succession Act, 1956?"
11. Heard Shri C.A. Rao, learned Senior Counsel assisted by Shri Tarini Prasad Tripathy, learned counsel for the plaintiff-appellant, and Shri P.K. Rath, learned Senior 2 AIR 2003 Gauhati 92 Page 9 of 30 Counsel assisted by Shri A. Behera, learned counsel for defendant-respondents.
(i) Submissions on behalf of plaintiff-appellant:
Learned Senior Counsel Shri Rao would assail the impugned judgment only insofar as the same relates to the finding that the plaintiff is not entitled to succeed to the properties of Sumitra. Shri Rao argues that the trial Court had rightly discussed the law to the effect that a female Hindu succeeds to the properties of her husband as an absolute owner in view of Sec.14 of the Hindu Succession Act. It is further well settled that such absolute ownership cannot be qualified or nullified in any manner whatsoever including remarriage by the widow. In the instant case, admittedly, Prahallad died intestate leaving behind his mother and widow. Insofar as the widow Sumitra is concerned, she must be held to have succeeded to the properties of her late husband absolutely. The plaintiff was born out of her second marriage with Rameswar. In view of the settled position of law, as laid down by the Supreme Court and this Court in several judgments, the fact of remarriage cannot divest Sumitra from her absolute Page 10 of 30 ownership over the suit properties. According to Shri Rao, the First Appellate Court has misread the judgment of the Supreme Court which has no application to the facts of the present case. Further, Shri Rao has cited several judgments in support of his contentions, which would be discussed later.
(ii) Submissions on behalf of defendant-respondents:
Shri Prafulla Kumar Rath, learned Senior Counsel supports the judgment passed by the First Appellate Court by holding that the matter relating to succession of the properties of a female Hindu dying intestate is squarely governed by the provisions of Sec.15 of the Hindu Succession Act. As per sub-sec. (2) of Sec.15, it is the source from which the property was inherited, which is relevant to decide its succession. It is the settled law that the property would revert to persons related to the original owner and never intended to devolve on persons not even remotely connected to the original holder of the property. In the instant case, admittedly, Prahallad, the original holder of the property and his wife-Sumitra had no children. Therefore, the property of Prahallad would Page 11 of 30 devolve on his widow-Sumitra after his death at the first instance and thereafter, would revert back to the other legal heirs of Prahallad, because of absence of any issue out of her marriage with Prahallad. The plaintiff is not connected at all to the family of Prahallad and therefore, she cannot succeed to his property, as rightly held by the First Appellate Court. Shri Rath has also cited several judgments to buttress his arguments which would be discussed later.
12. Analysis & findings:
12.1. After discussing the facts of the case and the rival contentions put forth, this Court deems it apposite to discuss the relevant statutory provisions at the outset. In this context, Sections 14 and 15 of the Hindu Succession Act, 1956 are relevant. Sec.14 reads as follows:-
"14. Property of a female Hindu to be her absolute property.―(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.―In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by Page 12 of 30 purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
12.2. Having regard to the legislative history of Sec.14, it has been held that the rule laid down in sub-sec. (1) has very wide and extensive application and has to be read in a comprehensive manner. The Act overrides inter alia, the old law on the subject of „Stridhana‟ in respect of properties possessed by a female, whether acquired by her before or after the commencement of the Act and this section declares that all such properties shall be held by her as full owner. The Act confers full heritable capacity on the female heir and this section dispenses with the traditional limitations on the powers of a female Hindu to hold and transmit property. The effect of the rule laid down in this section is to abrogate the stringent provisions against proprietary rights of a female which are often regarded as evidence of her perpetual tutelage and to recognize her status as independent and absolute owner of property. Page 13 of 30 (Refer Mulla- Principles of Hindu Law, 20th Edn., Vol-II, Page
394).
12.3. In the case of Eramma v. Veerupana,3, the Supreme Court observed as follows:-
"The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title, whether before or after the commencement of the Act. It may be noticed that the Explanation to s 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words 'as full owner thereof and not as a limited owner' in the last portion of sub-s (1) of the section clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, s 14(1) of the Act contemplates that a Hindu female, who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder..... [Emphasis added] 12.4. In the case of Vaddeboyina Tulasama v. Seshi Reddy4, the Supreme Court adopted the approach of giving "most exhaustive interpretation" to the sub-section with a 3 AIR 1966 SC 1879 4 AIR 1977 SC 1944 Page 14 of 30 view to advance the social purpose of the legislation, which is to bring about a change in the social and economic position of women.
12.5. Sec.14 should be read with Sec.4 which gives overriding effect to the provisions of this Act with respect to all matters dealt with in the Act and also enumerates matters which are not affected by this Act. (Refer Mulla- Principles of Hindu Law, 20th Edn., Vol-II, Page 395). 12.6. Thus, it is seen that the provision begins with the expression "any property", which is further delineated in the explanation as property „acquired from any source‟, which is obviously a very broad and pervasive depiction. 12.7. Now, what would be the effect of remarriage of a widow succeeding to the property of her husband. By operation of Sec.14 she would become the absolute owner of the property. It has been held that once a widow succeeds to the property of her husband and acquires absolute right over the same, she would not be divested of that absolute right on her remarriage and Sec.2 of Hindu Widows Remarriage Act, 1956 will not be attracted on Page 15 of 30 account of the overriding effect given to the provisions of this Act under Sec.4. Such a view was taken by this Court in the case of Sulochana Dei v. Khali Dei,5. This is, however, subject to the qualification that the remarriage was post 1956, i.e., after coming into force of the Hindu Succession Act, 1956.
12.8. Thus, the legislature in its wisdom and taking note of the societal norms prevailing at the time of commencement of the Hindu Succession Act in 1956 have unequivocally enacted the provision under Sec.14 with a view to confer absolute ownership on a widow succeeding to the property of her deceased husband. Such a right is not qualified in any manner whatsoever including her remarriage.
12.9. Now, coming to Sec.15 of the Act, the same governs the general rules of succession in case of female Hindus and reads as follows:-
"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,― 5 1986 AIR Ori. 11 Page 16 of 30
(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 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." 12.10. It has been argued forcefully by Shri Rath, learned Senior Counsel appearing for the defendant- respondents that sub-section (2) of Sec.15 places importance on the source of acquisition of the property, which is the deciding factor for devolution of the intestate after death of the female Hindu. At this stage, it would be fruitful to refer to „Mulla‟ yet again wherein the propositions enumerated under Sec.15 have been summarized in the following words:-
Page 17 of 30
"ORDER OF SUCCESSION The effect of the rules laid down in this section is that the property of a female intestate will devolve as summarized in the following propositions:
(1) The general order of succession laid down in entries
(a) to (e) in sub-s (1) applies to all property of a female intestate however acquired except in case of property inherited by her from her father, mother, husband or father-in-law.
(2) In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously, and if the husband of the intestate is alive they take simultaneously with him in accordance with entry (a). In such a case sub-s (2) does not at all come into operation.
(3) In case of a female intestate dying without issue but leaving her husband, the husband will take all her property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death.
(4) In case of female intestate dying without issue property inherited by her from her husband or father-in-
law (the husband being dead), will go to the heirs of the husband and not in accordance with the general order of succession laid down in sub-s(1).
(5) In case of a female intestate dying without issue property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in sub-s (1). Propositions (3), (4) and (5) above state the special order of succession, which is confined only to property acquired by the female intestate from the specified sources. Proposition (2) is the obvious corollary to the statement of law in the whole section." [Emphasis added] [Refer Mulla- Principles of Hindu Law, 20th Edn., Vol-II] Page 18 of 30 Considering the facts of the present case, it is apparent that Proposition-(2) quoted above would be applicable.
12.11. Now, the question is, whether the words "son" or "daughter", etc. mentioned in the proposition can include son and daughter begotten by the widow through her remarriage.
12.12. In Mulla (supra) it is held that the expression 'son' used in Entry (a) has not been defined in the Act. It includes both a natural son and a son adopted in accordance with the law relating to adoption among Hindus in force at the time of the adoption. 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. Further, the rules relating to a „son‟ stated above apply mutatis mutandis to the case of a „daughter‟. Thus, the legal position that emerges is, a widow succeeding to the property of her husband without having any issue from such marriage inherits the property as an Page 19 of 30 absolute owner. Subsequent remarriage does not and cannot divest her from such absolute ownership. In case she dies intestate without any issue then the situation described under clause (b) of Sub-Section (2) of Section-15 would apply. In other words, devolution of the property would depend upon the source on which it was acquired and in case the property was inherited by the female Hindu from her husband or from her father-in-law, it would devolve upon the heirs of the husband. Similarly, if she dies intestate without any issue, any property inherited by her from her father or mother would revert to the heirs of her father. But the situation would be totally different in case she has any issue, which is a situation described under Proposition-(2) referred to in Mulla quoted above. If the argument of Shri Rath would be accepted, it would render the provision under Section 14 redundant. Further, the legal proposition that „son-daughter‟ includes natural son, adopted son and sons/daughters by different husbands would also be nullified. This is obviously not the intendment of the legislature as reflected in the statute. Page 20 of 30 12.13. This Court is, therefore, of the considered view that the issue in the present case turns entirely on the fact that Sumitra, after death of her husband-Prahallad, had remarried Rameswar and she died leaving behind her only child Arnapurna (plaintiff). Therefore, there is no way, by which Arnapurna could be deprived of or held disentitled to the property of her mother. It is reiterated at the cost of repetition that had Sumitra died without any issue from her second marriage, then the matter would have been entirely different. This has also been explained in Mulla (supra) in the following words:-
"Female intestate who had remarried Where a female intestate had remarried after the death of her first husband, the „heirs of the husband‟ would be the heirs of the second husband, who if alive at the time of the death of the intestate would himself have been entitled to succeed as her husband under Entry (a). Therefore, so far as the expression 'heirs of husband' relates to the general order of succession laid down in sub- s (1), the heirs contemplated in Entry (b) must be the heirs of the last husband, that is of the person whose widow the intestate was at the time of her death.
The position, however, is quite different in respect of a case governed by cl (b) of sub-s (2) which has the effect of laying down a special order of succession under which in case of a female Page 21 of 30 intestate who dies without issue, the property inherited by her from her husband or father-in-law does not devolve upon the order of heir or heirs referred to in sub-s (1) in the order specified therein, but upon the heirs of the husband. It follows from the context that the heirs of the husband mentioned in sub-s (2)(b) are not the heirs of the husband she had married after the death of her first husband, but heirs of 'the husband' whose property she had inherited as his widow; and in case of property inherited from her father-in-law which could only be as the widow of a predeceased son, the heirs there contemplated are heirs of 'the husband' from whose father she inherited the property. Therefore, in respect of property that the intestate might have inherited from her first husband or the father of the first husband as the widow of a predeceased son, such property will, in case of her dying without issue, devolve upon the heirs of that husband. In such a case, the heirs of the second husband cannot succeed to the property of the intestate so inherited by her. Reference may be made to cl (b)."
[Emphasis added]
13. Now, this Court shall proceed to discuss the applicability or otherwise of the judgments cited by both parties.
13.1. In the case of Bhagat Ram (Dead) v. Teja Singh, (2002) 1 SCC 210, cited by Shri Rath, the Supreme Court held as follows:-
8. We do not find any merit in the contention raised by the counsel for the respondents. 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 Page 22 of 30 would only devolve upon the heirs of the father and, in this case, her sister Smt Indro was the only legal heir of 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. [Emphasis added] This Court fails to understand as to how the cited case would be applicable to the present case inasmuch as there can be no quarrel with the proposition laid down therein that the source from which the widow inherits the property is always important and that would govern the situation. But then, the Supreme Court has distinguished the case of a female Hindu dying intestate without any issue. Further, in holding so, the Supreme Court has referred to the reasons given by the Joint Committee of the Rajya Sabha as per Clause-17 of the Bill Page 23 of 30 while introducing sub-section (2) of Sec.15, which is quoted herein below:-
"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."
It is evident that the situation contemplated is that of a widow dying intestate, but without any issue. In such a situation, the property would obviously revert back to the legal heirs of the original holder. Shri Rath has tried to draw much mileage out of the observation of the Joint Committee that the provisions would prevent properties passing into the hands of the persons to whom justice would demand they should not pass, which is stated by the Supreme Court in the following words:-
"............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."
As already stated, this observation would not take within its ambit a case where there are children of the Page 24 of 30 widow begotten out of her remarriage, because, then Sec.14 would come into play, as already discussed in detail herein before. In fact, the observations do not at all relate to the case of a widow remarrying and begetting children thereby. 13.2. In the case of Smt. Dhanistha Kalita (supra), a learned Single Judge relied upon the aforementioned observations of the Supreme Court in the case of Bhagat Ram (supra) to hold that notwithstanding the fact that as female Hindu becomes a full-fledged owner of the property inherited by her from her husband, the property, on her death, will pass-over 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.
In view of what has been discussed herein before, this Court respectfully disagrees with the above proposition as in the considered view of this Court, such an Page 25 of 30 interpretation would amount to restricting the meaning of the words "son" and "daughter" used in Entry (a) of sub- section (1) of Sec.15. (Once again reference can be made to the Proposition (2) of Mulla (supra) quoted and discussed earlier in this judgment.) 13.3. The decision rendered in Lachman Singh v. Kirpa Singh,6, will also not be applicable to the facts of the case, for the reason that in the said case the question was decided in relation to a stepson, who obviously cannot be equated with a natural born son of the widow albeit from her second marriage.
Nevertheless, in the said judgment it has been clarified that the word "son" in clause (2) of Sec.15 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 Sec.3(i) of the Act; and (ii) adopted sons who are deemed to be sons for the purposes of inheritance.
6 (1987) 2 SCC 547 Page 26 of 30 Similar view was taken by a Coordinate Bench of this Court in the case of Sashidhar Barik & others V. Ratnamani Barik & another.,7.
14. Coming to the judgments relied upon by learned Senior Counsel Shri Rao, it is seen that in the case of Gajodhari Devi v. Gokul & Anr.8 : Punithavalli Ammal v. Minor Ramalingam and another9 decided by the Supreme Court and the case of Harabati and others v. Jasodhara Debi and others10 : Khageswar Naik v. Domuni Bewa11 decided by this Court and the case of Jagdish Mohton v. Mohammed Elahi12 : Chando Mahtain v. Khublal Mahto and ohters13 decided by Patna High Court, the proposition laid down is that the rights conferred on a Hindu female under Sec. 14(1) of the Act are not restricted or limited in any manner and that such rights cannot be lost merely on her remarriage with some other person.
7 OLR 2014 Ori 202 8 AIR 1990 SC 46 9 AIR 1970 SC 1730 10 AIR 1977 Ori. 142 11 AIR 1989 Ori.10 12 AIR 1973 Patna 170 13 AIR 1983 Patna 33 Page 27 of 30
15. It would also be useful to refer to the observations of the Supreme Court in the case of Cherotte Sugathan v. Cherotte Bharathi,14 that the Hindu Succession Act, 1956 brought about a sea change in the Shastric Hindu Law and that Hindu widows were brought on equal footing in the matter of inheritance and succession along with the male heirs.
16. Conclusion:
Thus, from a conspectus of the analysis of the facts of the case, the provisions of law involved and the discussion made thereon, it is evident that the right of a female Hindu widow to succeed to the property of her deceased husband is absolute and cannot be restricted in any manner including the fact of her remarriage. In the event of the widow dying intestate without any issue, the provisions of sub-section (2) of Sec.15 would apply. But in the event the widow has remarried and dies leaving behind children begotten out of the remarriage, the property succeeded by her from her husband of the first marriage would devolve on her children begotten out of the second 14 AIR 2008 SC 1467 Page 28 of 30 marriage as her legal heirs, provided she was issueless from her first marriage. Perusal of the impugned judgment would reveal that the trial Court appears to have considered the matter correctly from the perspective of absolute ownership of the female Hindu as per Sec.14 of the Act, but the First Appellate Court, without considering the subtle distinction in facts of the case, somewhat mechanically held that such a widow loses her absolute right because of her remarriage.
17. Another important aspect that needs mention is, the claim of defendant no.1 of being the adopted son of Sumitra has been rejected by both the Courts below. Such concurrent finding of the Courts below has become final in the absence of any appeal being preferred by defendant no.1 against such finding. Apparently, defendant no.1 appears to have confined his claim presently as one of the legal heirs of the first husband of Sumitra being the nephew of Prahallad. As discussed above, his claim has no legs to stand. This Court, therefore, holds that the First Appellate Court committed manifest error in partly Page 29 of 30 reversing the judgment and decree passed by the trial Court.
18. In the result, the appeal succeeds and is, therefore, allowed. The judgment and decree passed by the First Appellate Court is hereby set aside. The judgment and decree passed by the trial Court is hereby confirmed.
.................................. Sashikanta Mishra, Judge High Court of Orissa, Cuttack The 27th day of September, 2024/ G.D. Samal Signature Not Verified Digitally Signed Signed by: GAYADHAR SAMAL Designation: JOINT REGISTRAR-CUM-PRINCIPAL SECRETARY Reason: Authentication Location: ohc, cuttack Date: 01-Oct-2024 17:06:35 Page 30 of 30