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2006 DIGILAW 908 (PAT)

Babulal Kewani v. State Of Bihar

2006-10-09

AJAY KUMAR TRIPATHI, BARIN GHOSH

body2006
Judgment AJAY KUMAR TRIPATHI, J. 1. Appellant No. 1 is the only brother of the husband of the original writ petitioner. Appellant Nos. 2, 3 and 4 are the sons of the Appellant No. 1. According to the appellants, the husband of the original writ petitioner died in 1955. There is no dispute that the Appellant No. 1 and the husband of the writ petitioner had half share each in the land in question. There is also no dispute that the original writ petitioner was the wife of the brother of the appellant No. 1. The contention is that the original writ petitioner got re-married after her husband died. The appellants contended that by reason of such re-marriage, the right that the original writ petitioner acquired in the land in question by reason of death of her husband devolved upon the appellants by way of reversion. In view of such assertion, there is no dispute, therefore, that the original writ petitioner acquired some right in the land in question to the extent her husband was entitled to the same in terms of the law then governing the field. The law then governing the field granted limited right to such land to the original writ petitioner in terms of the 1937 Act. The question is when did the original writ petitioner got remarried. There is no assertion by the appellant either before the Settlement Officer or before the Appellate Authority or before the Revisional Authority or in the counter affidavit filed before the Writ Court that on a certain date the remarriage took place. The plea as was taken was that in 1955 the husband of the original writ petitioner died and thereupon the original writ petitioner remarried. Whether the remarriage took place in 1955 or in 1956 or on any day after coming into force of the Hindu Succession Act, 1956. No specific plea had been taken and accordingly the authorities named above did not give any finding on that score. Even in the appeal filed before us, it has not been categorically asserted that the remarriage of the original writ petitioner took place prior to coming into force of the Hindu Succession Act, 1956. 2. No specific plea had been taken and accordingly the authorities named above did not give any finding on that score. Even in the appeal filed before us, it has not been categorically asserted that the remarriage of the original writ petitioner took place prior to coming into force of the Hindu Succession Act, 1956. 2. In such view of the matter, on a plain reading of Sec. 14 of the Hindu Succession Act, 1956, the original writ petitioners limited right in the land in question stood converted into absolute ownership right. By virtue of Sec. 4 of the said Act, any law governing the field prior to coming into force of the said Act became obliterated and accordingly any law prescribing reversion of limited right of a widow in favour of a reversioner became inapplicable. The original writ petitioner thus having acquired absolute right in the property in question became vested therewith for eternity and no subsequent action on her part could alter the situation. 3. The learned counsel for the appellants submitted before the Trial Court as well as before us that in view of Sec. 24 of the said Act, the original writ petitioner having had remarried lost her right in the land in question. A look at Sec. 24 of the said Act would show that the re-marriage must take place on a date prior to the date the succession opens and accordingly Sec. 24 of the said Act applies to a widow, who as a heir may inherit, and accordingly if she is remarried on the date the succession opens, she is not entitled to inherit. The question of the wife remarrying before the date the succession opens, i.e. before the date her husband dies, is an impossible situation and accordingly Sec. 24 does not cover wife of the person, who is to be inherited. 4. The learned counsel for the appellants cited the judgment of the Hon ble Supreme Court in the case of Chairman, Grid Corporation of Orissa Limited (Gridco) & Ors. Sukamani Das (Smt.) & anr., 1999 7 SCC 298 for the proposition that in Writ Jurisdiction the Court should not decide disputed questions of fact. The learned counsel for the appellants submitted that the date of remarriage is a disputed question of fact, and as such no pronouncement in relation thereto should have been made by the Court. Sukamani Das (Smt.) & anr., 1999 7 SCC 298 for the proposition that in Writ Jurisdiction the Court should not decide disputed questions of fact. The learned counsel for the appellants submitted that the date of remarriage is a disputed question of fact, and as such no pronouncement in relation thereto should have been made by the Court. It is true that Writ Court will loathe to decide any disputed question of fact, but then, in order to raise a dispute, one must assert which must be denied by the other side. In the instant case, the appellants having not asserted at any stage, as indicated above, that the remarriage had taken place prior to coming into force of the 1956 Act, there was no scope of denial thereof, and accordingly no dispute cropped up which could prevent the Writ Court from pronouncing the respective rights of the parties on the law as applicable. 5. We, while disposing of the appeal by dismissing the same and upholding the judgment of the learned Single Judge, make it absolute clear that we are anguished that a brother in order to usurp the properties of a widow sister-in-law had approached the Settlement Officer with a wrong proposition of law and obtained a settlement in a manner unwarranted. The mitigating factor being correction of the wrongful settlement, we have restrained ourselves from imposing exemplary costs against the appellants.