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1963 DIGILAW 192 (ORI)

BINODE MOHANTA v. PALA DEI

1963-12-24

R.L.NARASIMHAM

body1963
JUDGMENT : Narasimham, C.J. - This is an appeal by Defendants 1 to 4 against the appellate judgment of the District Judge of Mayurbhanj - Keonjhar, maintaining the judgment of the Subordinate Judge of Keonjhar and decreeing the Plaintiff's suit for declaration of title and recovery of possession to the extent of half share in Ka schedule properties. 2. The properties originally belonged to one Chhattua. The Plaintiff is his daughter through his first wife, Karla. The first four Defendants are the son and grandsons of Chattua's divided brother Jhulun who died leaving a widow Mali. It has been found as fact that after the death of Jhulun Mali took Chhattua as her second husband. Chhattua died more than 10 years ago leaving thus two widows, namely Mali and Karla who under the law as it stood then would inherit his properties as co-widows, with right of survivorship. The finding of the lower appellate court is that the two widows remained in possession till the coming into force of the Hindu Succession Act of 1956. Karla was said to have died sometime in February or March 1957. The lower appellate court therefore held that from the date of the coming into force of the aforesaid Act the two co-widows who were limited owners became full owners of their husband's property as cotenants and after the death of Karla her 8 annas share in her husband's property devolved on her daughter (the Plaintiff) to the exclusion of the Defendants. 3. The Defendants set up a story of a deed of gift made in their favour by. Chhattua as early as 1938, out the lower appellate court held that it was not, in substance, a deed of gift, that in any case it was not acted upon and that Chattua remained in possession of the properties for more than 3 years after the execution of that document. Hence he held that the Defendants could not derive any title to the properties by virtue of that died of gift. 4. The only point of law urged by Mr. Hence he held that the Defendants could not derive any title to the properties by virtue of that died of gift. 4. The only point of law urged by Mr. Mohanty on behalf of the Appellant is that inasmuch as prior to the coming into force of the Hindu Succession Act, 1956 the co-widows of a Hindu succeeded to the properties with right of survivorship as between themselves that right of survivorship would also continue even after the coming Into force of the aforesaid Act and that consequently after the death of Karla, the entire interest in the property of Chattua would devolve on Mali by right of survivorship and that Karla's daughter would obtain no right to the same whatsoever. 5. The answer to this point depends upon a construction of Section 14 of the Hindu Succession Act read with Section 15 of that Act. It is true that prior to the coming into force of that Act the two widows were limited owners with right of survivorship, but by virtue of Section 14 they became full owners. It was urged that the right of survivorship was not in any way inconsistent with full ownership and that it would continue to remain even after the coming into force of the Act. Section 15 of the Act, however lays down a rule of succession for the property of a female Hindu dying after the commencement of the new Hindu Succession Act, and that line of succession is clearly inconsistent with any right of survivorship as between two co-widows. This point has been considered in Raghavachari's Hindu Law (4th Edition) at page 838 were the learned author observed: Though there is no indication in the Act that the previous right of survivorship which existed as between them should continue or not, even after the Act, it appears proper to predicate that in view of the of the qualified estate into an absolute one under these circumstances, they continue to hold the property only as tenants in common without right of survivorship. This view is supported by the decision of the Madras High Court reported in AIR 1959 Madras 349, where the co-widows who succeeded to the Hindu dying before the commencement of the Hindu Succession Act became co-tenants with full rights of ownership from the date of coming into force, of that Act. This view is supported by the decision of the Madras High Court reported in AIR 1959 Madras 349, where the co-widows who succeeded to the Hindu dying before the commencement of the Hindu Succession Act became co-tenants with full rights of ownership from the date of coming into force, of that Act. In Gupte's Hindu Law of Succession also (1963 Edition) at page 409, the same view has been expressed relying on the aforesaid decision. I must therefore hold that Karla and Mali became full owners to the extent of the annas share each, in their deceased husband's properties and any subsequent alienation by Mali in favour of the Defendants must be limited only to her share of that interest in her husband's property. The judgment of the lower appellate court is therefore correct and the appeal is dismissed but without the costs of this Court. 6. Appeal dismissed. Final Result : Dismissed