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2008 DIGILAW 538 (CAL)

Jayasri Guha Nee Ghosh v. Shukla Ghosh

2008-05-15

INDIRA BANERJEE, S.S.NIJJAR

body2008
JUDGMENT :- This appeal has been filed against the order of the learned single Judge dated 25th April, 2008, disposing of three applications. Application being G.A. No. 396 of 2006, filed by respondent No. 1/defendant No. 1 seeking vacation of the interim order of injunction dated 7th May, 2006 has been allowed. Consequently the principal application being G.A. No. 1425 of 2006 filed by the plaintiff seeking interim relief and the subsequent application being G.A. No. 3701 of 2006 which was to the same effect, but contained some additional grounds have been dismissed. As a result, respondent No. 1/defendant No. 1 has been permitted to deal with the property known as 'Rasbehari property' in its entirety and to deal with her undivided share in the Dharamtala and Deogarh properties. 2. In the suit, the plaintiff states that the parties to the suit are descended from and/or related to Ishan Chandra Ghosh. Ishan had two sons, Anukul and Pratul. Anukul had two sons, Hem Chandra and Narayan. Hem Chandra had one son Asoke, who died on 9th September 1960. Defendant No. 1 is the childless widow of Asoke. The plaintiff is the daughter of Narayan. Defendant/respondent No. 2 is the grandson of Pratul. Ishan, the two sons, the three grandsons, and one great-grandson (Asoke), husband of defendant No. 1/respondent No. 1 have all died intestate. Defendant/respondent No. 1 has inherited her share in the properties from her father-in-law. It is, therefore, the plaintiffs case that defendant No. 1/respondent No. 1 can only claim limited interest therein, each of which in law can only devolve upon the plaintiff as the plaintiff is the only heir of Asoke, i.e. husband of defendant No. 1/respondent No. 1. However, defendant No. 1/respondent No. 1 is in the process of selling or encumbering the inherited properties. Thus, the plaintiff has filed the suit seeking injunction and cancellation of any agreements to sell or encumber that may have been entered into by the defendant No. 1/respondent No. 1. It is pleaded that the respondent No. 1 had no legal necessity to sell any of the properties as she was receiving sufficient monthly income for her livelihood. According to the amended plaint, Ishan owned an immovable property, now numbered as 32/1, 32A, 32B and 32C, Lenin Saani, Calcutta (the Dharamtala property). It is pleaded that the respondent No. 1 had no legal necessity to sell any of the properties as she was receiving sufficient monthly income for her livelihood. According to the amended plaint, Ishan owned an immovable property, now numbered as 32/1, 32A, 32B and 32C, Lenin Saani, Calcutta (the Dharamtala property). The plaintiff says that the parties are jointly interested in the Dharamtala property and in two other immovable properties at 161/2/1, Rashbehari Avenue, Calcutta (The Rashbehari property) and Ishan Kutir at Puranbaha, Baidyanath, Deogarh in the State of Jharkhand (the Deogarh property). Therefore to protect her interests an application being G.A. No. 1425 of 2006 was filed by the plaintiff immediately on the institution of the suit seeking an ad interim order in terms of prayer "A" which was as follows :- "(a) An order of injunction be made forthwith restraining the respondent, her servants, agents and assigns from selling of or alienating or otherwise encumbering the properties mentioned in Annexure "A" or disposing of any portion thereof in any manner Whatsoever." This prayer was allowed by order dated 12th May, 2006. 3. On appearance of the first respondent, on 17th May, 2006 the order was modified as follows :- "Order of injunction passed by me on May 12, 2006 is modified to the extent that such order of injunction would be restricted to Dharmatala property and Deogarh property. It is made clear that in case the defendant wants to encumber the Rashbehari property she should obtain prior leave from the Court upon notice to the plaintiff. This order is passed without prejudice to the rights and contentions of the defendant that this Court has no jurisdiction to entertain the suit in respect of Rashbehari property." 4. The first respondent preferred an appeal against the order dated 17th May, 2006. The appeal was allowed by order dated 16th June, 2006. Against the order of the Division Bench dated 16th June, 2006, the appellant (plaintiff) filed a Special Leave Petition. By order dated 16th April, 2007, the appeal was allowed by the Supreme Court and the order of the Division Bench was set aside. Thus, the injunction order dated 17th May, 2006 continued. Ultimately, by order dated 30th April, 2008 the order of injunction has been vacated by the learned single Judge. 5. Hence, the present appeal by the plaintiff. 6. Thus, the injunction order dated 17th May, 2006 continued. Ultimately, by order dated 30th April, 2008 the order of injunction has been vacated by the learned single Judge. 5. Hence, the present appeal by the plaintiff. 6. It is submitted by the learned counsel for the appellant that the Hindu Succession Act, 1956 preserves the Hindu Shastric Law. Therefore, the Act did not purport to replace the old Shastric Law altogether. This, according to learned counsel, is obvious from the fact that the 1956 Act is an Act to amend and codify the law relating to intestate succession among Hindus. It is submitted by the learned counsel that by virtue of Section 15(2)(b) the appellant would be entitled to inherit the property of the father-in-law of respondent No. 1. But respondent No. 1 would have limited interest in the property in her lifetime. Section 15(2), according to the learned counsel, was introduced to preserve the principles of Shastric Hindu Law. Therein the principles of survivorship have been retained. Similarly the female heir was not given the right to demand a partition and the male heirs in certain specific instances were accorded a superior right than a female heir. According to the learned counsel, Section 14 would have to be interpreted keeping in view the provisions contained in Section 15(2). It is submitted that Section 15(1) provides the general rule of succession in case of a female Hindu dying intestate. Section 15(2) is not so limited. Therefore, the expression 'dying intestate' is not used in Section 15(2). According to the learned counsel, the learned single Judge has misconstrued the provisions of Section 15(2). Section 15(2) cannot be read as a proviso to Section 15(1). It is an independent provision and the words 'dying intestate' cannot be read into the provision. On the other hand, learned counsel for respondent No. 1 has submitted that by virtue of Section 14, respondent No. 1 has inherited property as full owner and not as a limited owner. It is submitted that this all embracing provision contained in Section 14(1) cannot be obliterated by Section 15(2). In the facts and circumstances of this case, according to the learned senior counsel, Section 5(2) would have no applicability. 7. We have considered the submissions made by the learned counsel for the parties. 8. It is submitted that this all embracing provision contained in Section 14(1) cannot be obliterated by Section 15(2). In the facts and circumstances of this case, according to the learned senior counsel, Section 5(2) would have no applicability. 7. We have considered the submissions made by the learned counsel for the parties. 8. Learned single Judge has, in our opinion, correctly held that the provisions contained in Section 15(2) would only become applicable if and when respondent No. 1 dies intestate. It has also been held that Section 15(2) of the Act does not impinge on her right to deal with properties of which she has become a full owner, on inheritance from her father-in-law. In support of this observation, the learned single Judge has relied on judgment of the Supreme Court in the case of Sadhu Singh v. Gurdwara Sahib Narike, reported in (2006) 8 SCC 75 : ( AIR 2006 SC 3282 ), wherein in paragraph 12 it has been held as follows :- "12. When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the Schedule take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17-6-1956 leaving his widow as his sole heir, she gets the property as Class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate." 9. The learned single Judge also relied on the observations made by the Supreme Court in the case of Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal, reported in (2008) 1 SCC 267 : ( AIR 2008 SC 295 ) to hold that the entirety of Section 15(2) applies in case of intestacy and cannot denude the Hindu woman of her right to bequeath it by a testamentary document. Reliance was placed on the following observations made by the Supreme Court in the abovementioned judgment which is as follows :- "12. Reliance was placed on the following observations made by the Supreme Court in the abovementioned judgment which is as follows :- "12. Parliament enacted the Hindu Succession Act, 1956 to amend and codify the law relating to intestate succession among Hindus. Section 3(f) of the Hindu Succession Act defines "heir" to mean any person, male or female, who is entitled to succeed to the property of an intestate under the Act........." In view of the above, we are unable to hold that the conclusion reached by the learned single Judge is either erroneous or illegal. 10. We are of the opinion that the conclusions reached by the learned single Judge do not call for any interference. Section 14 of the Hindu Succession Act is as follows :- "14. Property of a female Hindu to be her absolute property - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation - In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." 11. A perusal of the aforesaid Section clearly shows that any property possessed by a female Hindu irrespective of whether it was acquired before or after the commencement of the Act would be her absolute ownership. This Section specifically provides that after the passing of the 1956 Act, she would be the full owner of the property and not a limited owner. This Section specifically provides that after the passing of the 1956 Act, she would be the full owner of the property and not a limited owner. The Section 14, therefore, very clearly provides that even property acquired or held by a female Hindu as a limited owner prior to the passing of the 1956 Act would be converted into full ownership on the passing of the aforesaid Act. It is, therefore, not possible to accept the submissions of the learned counsel for the appellant that having made such a provision, the legislature would take it away by a subsequent provision (Section 15(2)) in the same Act. Furthermore, in order to accept the submission made by the learned counsel for the appellant, it would be necessary to delete from Section 14(1) the expression that the property shall be "held by her as full owner thereof and not as a limited owner." The Explanation to Section 14(1) makes it abundantly clear that the property may be acquired by the female Hindu by any mode. The term 'property' would also include both movable as well as immovable property. Sub-section (2) of Section 14 recognises that property may be received by a female, subject to the limitations contained in the instrument, decree, order or award under which she receives the property. Section 14(2), therefore, cannot, in any manner, limit the definition of 'property' as contained in Explanation to Section 14(1). A similar view was expressed by a Division Bench of this Court in the case of Bhabani Prosad Saha v. Sm. Sarat Sundari Choudhurani, reported in AIR 1957 Cal 527 . In that case, the facts were similar to the facts in the present case. Therein, the deceased had a daughter named Jyotiriswari and the plaintiff Bhabani Prosad Saha was her son. The deceased had adopted a son. The defendant was the widow of the son. The son died in the year 1914 leaving defendant as his sole heir. During his lifetime the son had purchased a number of properties which stood in the name of the widow. Subsequently, the property was notified for acquisition and under an award of the Collector a sum of Rs. 75,000/- was found payable to the owner. At that stage, the plaintiff instituted the suit claiming a declaration that the defendant was only a Benamdar of the deceased adopted son. Subsequently, the property was notified for acquisition and under an award of the Collector a sum of Rs. 75,000/- was found payable to the owner. At that stage, the plaintiff instituted the suit claiming a declaration that the defendant was only a Benamdar of the deceased adopted son. The plaintiff being the sister's son of the deceased husband of defendant No. 1/respondent No. 1, was the next reversionary heir under the Hindu Law of Succession as it stood before the coming into operation of the Hindu Succession Act, 1956. The suit was contested by the defendant on the ground that the properties which stood in her name were acquired by her with her own fund and that she was not a Benamdar for her husband but was the real owner of the properties. The suit filed by the plaintiff was dismissed. In appeal it was observed as follows :- "Under the Explanation of that section it is stated that the property includes, among other things, property acquired by a Hindu female by inheritance. The property which is the subject-matter of the dispute in the present case is in the possession of Saratsundari. So, even if the case made by the appellant be true, that is to say, even if it be held that the property really belonged to her husband and she inherited it as an heir to her husband she would become the absolute owner of the property under the main provision of that section. There can be no doubt on a plain construction of Section 14(1), Hindu Succession Act, 1956, that it confers a right of absolute ownership upon a female Hindu in respect of the properties described in the Explanation to sub-section (1). It is, therefore, immaterial for the purposes of this suit and this appeal whether Saratsundari acquired the properties in dispute with her own funds or she was merely a Benamdar of her husband. In either view of the matter she will be the absolute owner of the properties. For these reasons we do not think it necessary to go into the question whether the case made by the plaintiff in his plaint is true or false. As I have already said, on either view Saratsundari will become the full owner." These observations are a complete answer to the submissions made by the learned counsel for the appellant. 12. For these reasons we do not think it necessary to go into the question whether the case made by the plaintiff in his plaint is true or false. As I have already said, on either view Saratsundari will become the full owner." These observations are a complete answer to the submissions made by the learned counsel for the appellant. 12. This apart, Section 14, in our opinion, was enacted keeping in view the provisions contained in Article 13 of the Constitution of India. Article 13(1) of the Constitution clearly provides that any pre-Constitutional laws would be void to the extent to which they are inconsistent with fundamental rights. On the other hand, Article 13(2) prohibits the State from making a law which either takes away or abridges any part of the fundamental rights. Article 13(3) makes it abundantly clear that 'law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law within the territory of India. Article 15 of the Constitution of India prohibits any discrimination on the basis of gender. Therefore, it is not possible to accept that by virtue of Section 15(2) of the Hindu Succession Act, 1956, respondent No. 1/ defendant No. 1 would have only limited interest in the property inherited by her from her father-in-law. Even if Section 15(2) is construed to be an independent provision, it cannot be so interpreted as to lead to the conclusion that the concept of limited estate/interest of a Hindu female which was prevalent under the Shastric Law has been either retained or preserved. In our opinion, Section 15(2) relates only to the manner is which the property is to be inherited in the two given cases. By virtue of Section 15(2)(a) in case the property has been inherited by a Hindu female from her father or mother, in the absence of any children of the deceased the property shall go to the legal heirs of the father. By virtue of Section 15(2)(b) in case the property is inherited by a female Hindu from her husband or from her father-in-law, it shall devolve upon the heirs of the husband. This contingency, however, would arise only at the time when the female Hindu dies. In our opinion, Section 15(2) of the Act, in the present circumstances, has no applicability. 13. In view of the above, the appeal has no merit. 14. This contingency, however, would arise only at the time when the female Hindu dies. In our opinion, Section 15(2) of the Act, in the present circumstances, has no applicability. 13. In view of the above, the appeal has no merit. 14. The appeal and the application are, thus, dismissed. Appeal dismissed.