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2006 DIGILAW 1086 (PAT)

Ambika Rai v. State Of Bihar

2006-11-17

BARIN GHOSH, MADHAVENDRA SARAN

body2006
Judgment Barin Ghosh and Madhavendra Saran JJ. 1. One Abhilakh Rai had two sons; namely, Swarath Rai and Kritanath Rai, who were married respectively to Ajora Kuer and Sahodra Kuer. Swarath and Ajora had a daughter, namely, Dhanrajia, who was married to Nagina and had a son, Balbhadra. In the year 1923, Swarath and Kritanath died whereupon Ajora and Sahodra executed a deed of gift dated 26th May, 1923 and thereby gifted the properties, which were jointly owned by Swarath and Kritanath, to Balbhadra, who was then three years old. 2. The writ petitioners, who are the descendants of the siblings of Abhilakh, filed Title Suit No. 37 of 1923 seeking a declaration that Ajora and Sahodra, having no title to the land-in-question, could not gift the same and, accordingly, the deed of gift dated 26th May, 1923 is not valid. 3. The said title suit was compromised on 14th December, 2003 and the decree thereon was sealed and signed on 18th December, 1923. The compromise decree provided that until such time either Ajora or Sahodra would live, they would possess the property-in-question to its entirety, but after the death of both, half of the property will go to Balbhadra and the remaining half to the ancestors of the writ petitioners. 4. In the year, 1967 Sahodra died. Prior thereto Ajora died. 5. There is no dispute that Sahodra had a daughter, namely, Parvatia. Parvatia claimed that she is entitled to a part of the property-in-question. A proceeding under Sec.144 of the Criminal Procedure Code was initiated which was converted ultimately into a proceeding under Sec.145 of the Criminal Procedure Code and in the said proceeding it had been recorded that Parvatia is in occupation of 1/ 4th of the subject property. 6. After Sahodra died, the directions contained in the compromise decree were given effect to by recording entitlement of the parties thereto in pursuance therewith in the records of right. However, at that stage, while the writ petitioners were shown to be entitle to the subject property to the extent of half thereof, it was shown that Balbhadra is entitled to hold 1/4th thereof and the remaining 1/4th Parvatia was entitled to hold. 7. In 1974/75 proceedings were initiated under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1955 to prepare a register of lands pertaining to the land-in-question. 7. In 1974/75 proceedings were initiated under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1955 to prepare a register of lands pertaining to the land-in-question. In the land register pertaining to the land-in-question, as was prepared and published, it was shown that the petitioners are entitled to half of land-in-question, Balbhadra is entitled to 1/4th of the land-in-question and Parvatia is entitled to the remaining 1/4th. To this, an objection was filed by Balbhadra. He contended that having regard to what has been provided in Clause (5) of the compromise, inasmuch as, he has challenged the compromise, the same cannot be looked at, and as such, the writ petitioners cannot claim to be entitled to any part of the land-in-question on the strength of the said compromise. This contention was rejected by the first authority. On appeal, the appellate authority read Clause (5) of the compromise in the manner Balbhadra wanted the appellate authority to read the same and, accordingly, concluded that inasmuch as Balbhadra has challenged the compromise, the compromise is of no effect and on the strength thereof writ petitioners cannot claim to have acquired title to any part of the land-in-question. The revision filed by the writ petitioners was dismissed when the view expressed by the appellate authority was accepted. 8. The writ petitioners, therefore, approached the writ court and contended that the orders passed by the appellate authority as well as the revisional authority are bad inasmuch as the same are based on misreading of Clause (5) of the compromise. The compromise is written in Kaithi language. Clause (5) thereof in fact prevents any of the parties to challenge the compromise. The writ court, accordingly, proceeded on the basis that the appellate authority as well the revisional authority misconstrued the provisions contained in Clause (5) of the compromise. 9. However, the writ court felt that by virtue of the decree passed in Title Suit No. 37 of 1923 i.e. on the basis of the said compromise, Sahodra acquired limited ownership right in the land-in-question, which was existing as on the date of coming into force of the Hindu Succession Act, 1956 and, accordingly, by virtue of sub-section (1) of Sec.14 of the Hindu Succession Act, 1956 , she acquired full ownership of the land-in-question to the exclusion of the petitioners. 10. 10. There is no dispute that Sahodra as well as Ajora acquired limited right in the land-in-question in its entirety in terms of the decree passed in the said suit on the said compromise, but the question is whether the decree, which created such limited right, granted the same in recognition of any pre-existing right of Sahodra. 11. In 1923, when the decree was passed, neither Sahodra nor Ajora admittedly had any right in the property-in-question. Both of them mainly had a right of maintenance out of yields of the property in-question. The 1923 decree, while created for the first time, limited right of Ajora and Sahodra in the property-in-question, it did not create the same in lieu of right of maintenance. In other words, while the decree created a right for the first time, it did not recognize any pre-existing right and at the same time also did not create the right in consideration of any other right. 12. Learned counsel appearing in support of the appeal, preferred by the writ petitioners, after having had lost before the writ court for the reasons given above, urged that sub-section (1) of Sec.14 of the Hindu Succession Act, 1956 is not applicable in the instant case for at the time of commencement of the Hindu Succession Act, 1956 neither Ajora nor Sahodra had any limited or otherwise right to possess the property but they had acquired right to retain the property-in-question under the decree for their life and, accordingly, their right, as obtained under the decree did not stand enlarged to any extent apart from what had been provided in the decree itself. 13. The learned counsel for the appellant drew our attention to a judgment of the Hon ble Supreme Court rendered in the case of Vankamamidi Venkata Subba Rao vs. Chatlapalli Seetharamaratna Ranganaya Kamma, reported in AIR 1997 Supreme Court 3082, for the proposition that when the right was created in a land not in recognition of a pre-existing right, the limited right does not get enlarged into an absolute right by operation of Sec.14(1) of the Hindu Succession Act, 1956 . 14. In that case, a Hindu lady obtained a limited estate in respect of certain lands under a compromise decree. The High Court held that such limited right stood enlarged into full right by virtue of sub-section (1) of Sec.14 of the Hindu Succession Act. 14. In that case, a Hindu lady obtained a limited estate in respect of certain lands under a compromise decree. The High Court held that such limited right stood enlarged into full right by virtue of sub-section (1) of Sec.14 of the Hindu Succession Act. The Hon ble Supreme Court, in the judgment referred to above, explained that if the compromise decree had granted the limited right, as was granted thereunder, in recognition of any pre-existing right, certainly such limited right will blossom into a full right by virtue of sub-section (1) of Sec.14 of the Hindu Succession Act, 1956 , but if the right so created by virtue of such decree is not in recognition of a pre-existing right then sub-section (2) of Sec.14 of the Hindu Succession Act will apply and in terms thereof there is no scope of the limited right becoming a full right. 15. In this connection, it would be appropriate on our part to set out paragraphs of the judgment, which is as follows: "It is well settled legal position that if the right by a Hindu woman under any instrument is in recognition of pre-existing right, the limited right though prescribed under the instrument, gets enlarged into an absolute right by operation of Sec.14(1) of the Act. On the other hand, if a right is acquired for the first time under the document, then sub-section (2) of Sec.14 gets attracted and, therefore, the right acquired under the instrument by operation of sub-section (2) of Sec.14 does not get enlarged." 16. In those circumstances, there being no dispute that the compromise, as was effected, did not purport to create the limited right in recognition of any pre-existing right of Ajora and Sahodra, Sec.14(2) of Hindu Succession Act will apply and not Sec.14(1) thereof and as such the limited right of Sahodra did not turn into full right after coming into force of the Hindu Succession Act, 1956 . 17. The conclusion, therefore, would be that the order of the first authority under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 rejecting the objection of Balbhadra was a right order and the orders of the appellate authority as well as of the revisional authority and of the writ court were wrong orders. 18. 17. The conclusion, therefore, would be that the order of the first authority under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 rejecting the objection of Balbhadra was a right order and the orders of the appellate authority as well as of the revisional authority and of the writ court were wrong orders. 18. We, therefore, allow the appeal, set aside the judgment under appeal and allow the writ petition by quashing the orders as passed by the appellate authority as well as the revisional authority. 19. There shall be no orders as to costs.