Research › Browse › Judgment

Orissa High Court · body

1987 DIGILAW 97 (ORI)

KUMARI SAUDAMINI v. B. ARNAPURNA BEBERANI

1987-03-17

L.RATH

body1987
JUDGMENT : L. Rath, J. - The Plaintiff has preferred this appeal against the judgment and decree passed by the learned Subordinate Judge. Aska reducing her share in the joint family property and maintenance as allowed to her by the trial Court and also negativing the claim of marriage expenses which had been allowed by the trial Court. The joint family consisted of B. Kanbu Behera and his three sons: B. Padmanav, B. Laxmi narayan and B. Gopal. B. Padmanav died in 1950 leaving his wife B. Padmabati and daughter Saudamini> the Plaintiff. The widow B. Padmabati re-married in 1955' and left the family. The father B. Kanhu Behera died on 24.8-1957. The suit was instituted by the Plaintiff in 1970 claiming 1/3rd share of the joint family properties, for past maintenance and for marriage expenses impleading B. Laxminarayan as Defendant No. 1, B. Gopal as Defendant No. 2 and B. Hiramani, wife of B. Kanhu as Defendant No. 3,. During the pendency of the suit, Defendant No. 4 died. All the Defendants contested the suit jointly and resisted the Plaintiff's case denying her father to be a member of the coparcenary since he had earlier separated from the joint family by partition. The Plaintiff was thus denied to have any interest in the joint family properties. 2. The suit was decreed by the learned Munsif preliminarily declaring 1/3rd share in favour of the Plaintiff granting past maintenance of Rs. 1,080/- ' Rs. 30/- per month for the proceeding three years and marriage expenses to Rs. 500/-. 3. In appeal, the learned Subordinate Judge while retaining the finding that there had been no previous Partition between the father of the Plaintiff and other members of the joint family, calculated the share of the Plaintiff to be 1/9th, reduced the maintenance from Rs. 30/- to Rs. 15/- and also negatived the marriage expenses. The Plaintiff has thus come up in appeal for reversal of the decree passed by the learned Subordinate Judge. 4. Mr. Murty the learned Counsel appearing for the Appellant has urged that the share of the Appellant has been wrongly determined by the learned Subalternate Judge and that on correct determination it should be 1/3rd. He also urges that negativing the marriage expenses and reduction of maintenance are wholly without any, basis. 5. So far as the share of the Plaintiff is concerned Mr. He also urges that negativing the marriage expenses and reduction of maintenance are wholly without any, basis. 5. So far as the share of the Plaintiff is concerned Mr. Murty made an effort to contend that B. Padmabati had a share in the properties on the death, of her husband under the Hindu Women's Right to Property Act, 1937 which property was also to be inherited by the Plaintiff but however fairly conceded that the submission was wholly untenable. Even though undoubtedly B. Padmabati was entitled to a share in the property on the death of her husband, yet it was a Hindu Women's estate and on her re-marriage in 1955 she was divested of the interest in the,property as if she were dead and her interest would devolve upon the reversioners of her husband by survivorship. The Plaintiff was not an heir to her father prior to the Hindu Succession Act, 1956- and thus succession opened only after the death of B. Kanhu Behera in 1957. Kanhu had 1/3rd interest in the joint family property. If a partition had taken place immediately prior to Kanhu's death, his wife, Defendant No. 4 was not entitled to a share since there is no dispute that the parties are Oriya Hindus of Ganjam district and are governed by Madras school as has been decided in Pakulu Majhi, and Ors. v. Subhadra Bhotmuni 31 (1981) C.L.T. 91, relying upon a Bench decision of this Court reported in Bodo Annanda Podhano Vs. Dondo Naiko (since deceased) and Others. In the Madras school a wife or mother-are not entitled to claim any share in the joint family properties. The practice of allotting shares to females is obsolete in Southern India vide the Full Bench' decision of Andhra Pradesh reported in Adusumilli Seethamahalakshmamma v. Yerneni Chalamaiah and other AIR 1947 A.P. P. 130 (F.B.), and also Mulla. Article 315 (14th edition). Thus B. Kanhu having 1/3rd share in the property, the, Plaintiff was entitled to succeed him as the daughter of a pre-deceased son and was to take simultaneously with Defendant Nos. I, 2 and 3 and hence was entitled to 1/12th share in the property. Defendant No. 4 was likewise entitled to 1/12th share on B. Kanhu's death and on her death the Plaintiff and Defendant Nos. I, 2 and 3 and hence was entitled to 1/12th share in the property. Defendant No. 4 was likewise entitled to 1/12th share on B. Kanhu's death and on her death the Plaintiff and Defendant Nos. 1 and 2 were to divide such share amongst themselves and each had thus another 1/36th shares to themselves. The Plaintiff was thus entitled to 1112th share as heir of B. Kanhu and 1/36th share as heir of Defendant No. 4 and together was entitled to 1/9th share. The learned - Subordinate Judge was-correct in his calculation of the- shares of the Plaintiff and no exception can be taken to it. For the reasons disclosed by the learned Subordinate Judge no interference is called for regarding the determination of the past maintenance due to the Appellant and the refusal of marriage expenses. 6. In the result, the appeal has no merit and is dismissed. But however under the circumstances there shall be no order as to costs. Final Result : Dismissed