Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 844 (ORI)

Disari Sanyasi (having died) Rama Chandra Disari v. Matam Chilpa (having died) Dhana Matham

2007-11-06

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. — This is an appeal against the judgment and decree passed by the learned Addl. District Judge, Jeypore in Title Appeal No. 4 of 1985 reversing the judgment and decree of the learned Addl. Munsif, Jeypore in Title suit No. 24 of 1980. 2. The appellants as plaintiffs filed the above noted suit with a pleading that the property described in the Schedule of the plaint is the joint family property of the plaintiffs and the father of the defendant namely, Disari Dambu. This Disari Dambu had no male issue, but had only a daughter, defendant No. 1. So he adopted plaintiff No. 3 as his son. The defendant was married and was living in her husband’s village for last 40 years but after the death of Disari Dambu she claimed right, title over the suit property of Disari Dambu as the legal heir and also basing on a gift deed allegedly executed by the said Disari Dambu. Since there was a scramble for possession a 145, Cr.P.C. proceeding was initiated in the Court of Executive Magistrate where the possession of defendant was declared. The plaintiffs, therefore, filed the suit for recovery of possession and eviction of the defendant from the suit land. The defendant in W.S. while denying the claims of the plaintiffs averred that her father Disari Dambu had already separated himself in mess and property and was in possession of the suit property and being his only legal heirs, she continued possession over that property. The defendant denied any adoption of plaintiff No. 3 by her father and the possession of the plaintiff over the suit land. She asserted that being the only daughter and heir of Disari Dambu, she is the owner in possession of the suit property. 3. Learned trial Court framed seven issues, accepted the evidence of the parties and on consideration of those evidence held that the plaintiffs and Disari Dambu were joint in status and were in joint possession of the properties and that on the death of Disari Dambu the plaintiffs continued their possession. Learned trial Court further held that the parties belong to Scheduled Tribe and are guided by old Hindu Law, which does not contemplate any share for a daughter in the ancestral property. On these observation learned trial Court decreed the suit. Learned trial Court further held that the parties belong to Scheduled Tribe and are guided by old Hindu Law, which does not contemplate any share for a daughter in the ancestral property. On these observation learned trial Court decreed the suit. The appellate Court reversed the finding with the observation that Disari Dambu and the plaintiffs were no more joint and that the defendant was in possession of the suit property after Disari Dambu that as per Madras School of Old Hindu Law a daughter is entitled to succeed to the property of her father and that the defendant was entitled to the property of her father Disari Dombu. The legality of the said order of the first appellate Court is under challenge in this appeal. 4. The following substantial question of law was formulat¬ed for consideration in the appeal : (i) Whether succession between the parties is governed by cus¬tomary law or by the Hindu Succession Act ? From the pleadings of the parties as well as the submission there appears no dispute that the parties belong to Scheduled Tribe. Section 2 (2) of the Hindu Succession Act clearly says that the provision of Hindu Succession Act, 1956 does not apply to the members of the Scheduled Tribe. In that situation, the Old Hindu Law or the customary law would govern the rights of the parties belonging to the Scheduled Tribe. In the present case there is no pleadings or evidence regarding any customary inheri¬tance of the parties. Therefore, the parties would be governed by the old Hindu Law. 5. Learned Courts below have concurrently held that plaintiff No. 3 is not the adopted son of Disari Dombu. There being concurrent findings of the Courts below on such factual issue the matter cannot be reopen in second appeal. Regarding the status of the parties, learned first appellate Court has held that Disari Dombu was no more in jointness with the plaintiffs. This finding also being a finding of fact cannot be re-agitated in the second appeal unless the decision is tainted with perver¬sity or error of record. No such plea of perversity or error of remand is now there before this Court. Therefore, the said deci¬sion has also assumed finality. Now the sole question is whether the defendant under the old Hindu law had any right in the property of Disari Dombu. No such plea of perversity or error of remand is now there before this Court. Therefore, the said deci¬sion has also assumed finality. Now the sole question is whether the defendant under the old Hindu law had any right in the property of Disari Dombu. Sections 24 and 25 of the Principles of Hindu Law by Mulla speak about modes of devolution of property and rights of female heirs. All Mitakshara Schools accept 5 females, who can succeed as heirs to a male. These heirs are : (1) Widow, (2) daughter, (3) mother, (4) father’s mother, (5) father’s mother. In the illustration it has also clarified that if two Hindu brothers governed by Mitakshara School of law are the members of joint and undivided family then on the death of one of the brothers his share in the joint family property would pass on to his brother as the surviving coparcener and not to the daughter. But if such properties were separate then the property of the deceased-brother would on his death pass to his daughter as his heir. In other words, if the brothers are separate in status then the property of each brother would pass on to his respective heirs including a daughter. In the present case admit¬tedly Disari Dombu had no son and the defendant is the only daughter of Disari Dombu. Once this Disari Dombu is found to be separate in status then on his death, his property would pass on to his daughter and such daughter would have limited interest and would hold that property as owner thereof till life time. Howev¬er, in view of the provisions of Sec. 24 of Principles of Hindu Law of Mulla, on the death of the daughter her son, if any, would succeed to that property of his mother and would hold the same as an absolute owner as per the provision of Sec. 43 (6) of the Principles of Hindu Law. This view is also supported by a deci¬sion rendered by a Division Bench of this Court in the case of Dumi Majhiani (having died) Chandra Mohan Majhi and others v. Lalamohan Majhi and others, 77 (1994) CLT 219. 6. For the aforesaid reasons, the substantial question of law is answered against the appellants and the appeal is found to be without any merit. 6. For the aforesaid reasons, the substantial question of law is answered against the appellants and the appeal is found to be without any merit. Consequently the impugned judgment and decree rendered by learned first appellate Court is confirmed and the appeal is dismissed on contest, but without any cost. Appeal dismissed.