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2004 DIGILAW 81 (JHR)

Leela Devi v. Surya Narayan Dayal

2004-01-19

P.K.BALASUBRAMANYAN, TAPEN SEN

body2004
ORDER 1. I.P.A. 226 of 2000 is filed by the plaintiff in the Suit P. S. 222 of 1993 on the file of the Subordinate Judge, Ranchi. I.P.A. 233 of 2000 is filed by defendant No. 1 therein, the contesting defendant. The suit was one for partition. The suit was resisted by the contesting defendants namely, defendants 2 and 6. The trial Court upheld the claim of the plaintiff for partition and held that she was entitled to 10 out of 56 shares. The plea of ouster raised by the contesting defendants was negatived. Challenging the decree of the trial Court, defendant 2 and 6 filed the appeal, F.A. 174 of 1995. A learned Single Judge of this Court allowed the appeal in part and reduced the share to which the plaintiff was entitled. The learned Judge reduced the share to 1/28. Feeling aggrieved the plaintiff has filed the appeal questioning the reduction in share and defendant No. 1 has filed the appeal questioning the share awarded to the plaintiff. 2, According to the plaintiff five items, namely, plaint items 1, 2, 3, 4 and 7 stood in the name of her paternal grandmother Kewala Kunari and on her death devolved on her son Ram Niranjan Dayal, the father of the plaintiff, two items, items 5 and 6 were the acquisitions of her father Ram Niranjan Dayal, Ram Niranjan Dayal died on 26.12.1958 leaving behind two widows, the mother of the plaintiff, Tetar Kunari and the mother of the defendants 1 to 5, Jirkalo Devi impleaded as defendant No. 6 in the suit. According to the plaintiff the father Ram Niranjay Dayal having died after the coming into force of the Hindu Succession Act, she was entitled to a half share in the suit properties. In their written statement, the contesting defendants took the plea that the properties were ancestral and that the share claimed by the plaintiff is not correct. They raised the plea that on the death of Ram Niranjan Dayal, his widows would take one share between them and on the death of Tetar Kunari, the mother of the plaintiff on 17 of 1987 her right in that share survived to the co-widow. They raised the plea that on the death of Ram Niranjan Dayal, his widows would take one share between them and on the death of Tetar Kunari, the mother of the plaintiff on 17 of 1987 her right in that share survived to the co-widow. Jirkalo Devi and so understood, the plaintiff was entitled only to a share in the share that may be found due to Ram Niranjan Dayal, the father, on a notional partition as having taken place a day prior to his death. It is not necessary to deal with the plea of ouster raised in defence since that plea was found against and it has not been pursued thereafter, 3. The trial Court proceeded as if the properties were the separate properties of Ram Niranjan Dayal. It held that, on the death of Ram Niranjan Dayal, his two widows would get 1/7 shares and his children including the plaintiff would get 1/7 share each. Half of 1/7th share belonging to Tetar Kunari, mother of the plaintiff would devolve on the plaintiff and thus, the plaintiff would be entitled to 1/14-1/7 shares. But the trial Court calculated the share due to the plaintiff as 10 out of 56 shares and passed the preliminary decree for partition on that basis. 4. The learned Single Judge in the appeal by the contesting defendants, adverted to Sections 6 and 8 of the Hindu Succession Act. but not to Section 19 of that Act. The learned Judge held that on the death of Ram Niranjan Dayal, a notional partition would take place in which his two widows would get a share equal to that of their children and on the death of Tetar Kunari on 17.01.1987, her right in the share of the widows would survive to the other widow Jirkalo Devi, defendant No. 6, the mother of defendants 1 to 5, since the widows take the property in terms of Section 8 of the Hindu Succession Act as joint tenants. Thus, the learned Judge found that the plaintiff was entitled only to 1/28 share in the properties and she was not entitled to claim anything in the share that devolved in her mother. Thus, the preliminary decree was modified. 5. It is seen that the parties did not seriously pursue their respective cases regarding the nature of the properties. Thus, the learned Judge found that the plaintiff was entitled only to 1/28 share in the properties and she was not entitled to claim anything in the share that devolved in her mother. Thus, the preliminary decree was modified. 5. It is seen that the parties did not seriously pursue their respective cases regarding the nature of the properties. Though the plaintiff pleaded in the plaint that five out of the seven items belonged to her grandmother and they devolved on their father and the defendants pleaded that the properties were ancestral, no real issue was stuck between parties on the antecedents of properties. The Courts proceeded on the basis of the notional partition contemplated to Section 6 of the Hindu Succession Act, though the trial Court proceeded to calculate the shares as if the properties were the separate properties of Ram Niranjan Dayal. But, before the learned Single Judge, it is seen that the controversy that was mainly projected was regarding what must happen to the 1/4th share taken by the widows on the basis of the notional partition contemplated by Section 6 of the Hindu Succession Act. The learned Single Judge accepted the plea that the widows would take the properties as joint tenants and the rights of Tetar Kunari, the mother of the plaintiff would survive to the other joint tenant, the co-widow Jirkalo Devi. It was thus that the learned Single Judge confined the share of the plaintiff to 1/28. 6. We find that it is not possible to agree with the finding of the learned Single Judge that the share taken by the widows on the death of Ram Niranjan Dayal in the year 1958 was taken by them as joint tenants. After coming into force of the Hindu Succession Act and in the context of Section 19 thereof, it is not possible to accept the contention that the widows take the property as joint tenant and not as tenants in common. That a widow gets an absolute right in whatever she gets, is also emphasised by Section 14 of the Act. Therefore, it is clear that the widows on the death of Ram Niranjan Dayal took the share that devolved on them as tenants in common. On the death of Tetar Kunari in the year 1987 her share would devolve on her heirs to the exclusion of the heirs of the other co-widow. Therefore, it is clear that the widows on the death of Ram Niranjan Dayal took the share that devolved on them as tenants in common. On the death of Tetar Kunari in the year 1987 her share would devolve on her heirs to the exclusion of the heirs of the other co-widow. If that be so, It is clear that the share of Tetar Kunwar in the one share taken together by the two widows, would devolve on the plaintiff in addition to the share the plaintiff herself has on the death of her father. 7. Then the question is what is the share of the two widows in the property. Whereas the trial Court proceeded on the basis that it was 1/7 the learned Single Judge proceeded on the footing that it was 1/4, based on Section 6 of the Hindu Succession Act. The learned Single Judge found that in the notional partition on the death of Ram Niranjan Dayal, the share of Ram Niranjan Dayal would be 1/4, that of the two widows together would be 1/4 and that of the two sons, defendants 1 and 2 would be 1/4 each. Thus, the share of widows was found to be 1/4. Though on the pleadings, it may be possible to contend that there is nothing to show that the properties were coparcenary properties as assumed by the learned Single Judge, we found that the parties proceeded on that basis before the learned Single Judge and the plaintiff also did not challenge the decree of the trial Court awarding her only 10 out of 56 shares which would have been lesser than what she would have been entitled, if the properties were considered to be the separate properties of Ram Niranjan Dayal. Of course, there was an attempt to argue before us that the matter must be remanded to the trial Court for deciding the question of the nature of the properties, specially in the context of the admission of the plaintiff that her grandfather was the malik of the properties. But we do not think that it would be just or proper to remand this suit to the trial Court to decide the nature of properties resulting in further undue prolonging of this litigation. But we do not think that it would be just or proper to remand this suit to the trial Court to decide the nature of properties resulting in further undue prolonging of this litigation. We think that even at the cost of some dent in the share the plaintiff may get ultimately, it would be more appropriate to decide these appeals finally here and shorten this litigation. 8. On that approach, we find that in the circumstances we would be justified in determining the share of the two widows as 1/4. So determined, the mother of the plaintiff, Tetar Kunari, must be held to be entitled to 1/8 shares as her separate property, the other 1/8 going to defendant No. 6 Jirkalo Devi, the other widow. The 1/8 share belonging to Tetar Kunari the mother of the plaintiff would obviously, exclusively, devolve on her daughter, the plaintiff. Thus, the plaintiff would get in addition to 1/28 shares as the heir of the father, the other 1/8 share as the heir of her mother. That would mean that the plaintiff would be entitled to the 1/8th share of her mother in addition to the 1/28 share of her mother in the 1/4 of Ram Niranjan. Thus, the plaintiff would be entitled, to 9 out of 56 shares. Thus, the decree passed by the learned Single Judge calls for modification. 9. While, therefore, we dismiss the appeal, L.P.A. 233 of 2000 filed by defendant No. 1, we allow L.P.A. 226 of 2000 filed by the plaintiff and modifying the share awarded by the learned Single Judge award to the plaintiff 9/56 shares in the suit properties. The shares of the other sharers would stand modified on this basis and a final decree will be passed on the basis of this declaration. 10. Considering the relationship between the parties, parties are directed to bear their respective costs. 11. It is made clear that it would be open to the parties to move the Court which is dealing with the final decree for petitioner to make suitable directions to the receiver consistent with the shares declared by us in these appeals.