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2012 DIGILAW 204 (CHH)

Sonmati v. Lachhman

2012-08-13

N.K.AGARWAL

body2012
JUDGMENT 1. Goju, Chachai and Bondka were brothers. Goju died prior to the death of Chachi. 2. Suit land i.e. 7.74 acres of agricultural land situated at village Bastar, Patwari Halka No. 52, R.I. Circle Menpuri, Tahsil Jagdalpur, District Bastar was self earned property of Chachi. After the death of Chachi, it devolved upon Mst. Sukali i.e. his wife. Mst. Sukali also died sometime in the year 1989-90, and thereupon this dispute about the inheritance to the suit land left behind by Mst. Sukali, has arisen between the parties. Both the parties claim on the basis of Hindu Succession Act, 1956. 3. As the suit land was mutated in the name of Bondka and after his death in the year 1992 in the name of defendants i.e. heirs of Bondka, a suit claiming declaration of their half share in the suit land, partition, separate possession and mesne profit was filed by the respondents i.e. legal heirs of Goju. 4. The plaintiffis; suit was decreed. First appeal preferred by the appellant was also dismissed. 5. Feeling aggrieved and dissatisfied with the judgment and decree dated 30.10.1999 passed by IIIrd Additional District Judge Jagdalpur (Bastar), in Civil Appeal No. 6-A/1998, affirming the judgment and decree dated 28.02.1998 passed by IIIrd Civil Judge Class II, Jagdalpur, in Civil Suit No. 237-A/96, instant second appeal has been preferred by the defendants i.e. legal heirs of Bondka. 6. During pendency of second appeal, appellants No.1 and 3 and respondent No.1 have died and their names have been deleted from the memo of appeal. 7. The second appeal was admitted for hearing on the following substantial question of law : "Whether the court below failed to see that if the suit property be self acquired property of Chachi, shall be succeeded to by Bondka, after the death of his widow Sukali in the year 1990 ?" 8. I have heard learned counsel appearing for the parties and perused the records of both the courts below including judgment and decree impugned. 9. Admittedly, there is no dispute between the parties with regard to the fact that suit property was self earned property of Chachi. It is also not in dispute that Goju died before the death of Chachi and at the time of death of Mst. Sukali i.e. wife of Chachi, Bondaka - real brother of Chachi was alive. 10. 9. Admittedly, there is no dispute between the parties with regard to the fact that suit property was self earned property of Chachi. It is also not in dispute that Goju died before the death of Chachi and at the time of death of Mst. Sukali i.e. wife of Chachi, Bondaka - real brother of Chachi was alive. 10. The question to be decided is: which are the parties is entitled to succeed to the interest of Mst. Sukali under the Hindu Succession Act, 1956. 11. The General Rules of succession in the case of a female Hindu dying intestate are given in Section 15 of the Act, which so far as it is material for the purpose, read as follows: "15(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,- (a) upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) upon the heirs of the husband; (c) to (e) ...................................... (2) Notwithstanding anything contained in sub-s (1),- (a) .......................... (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-so (1) in the order specified therein, but upon the heirs of the husband." 12. This section should be read along with the Rules set out in Section 16, the material part of which runs as under: "The order of succession among the heirs referred to in Section 15 shall be, and distribution of the intestates property among those heirs shall take place according to the following rules namely :- "Rule 1 .............................. Rule 2 ............................... Rule 3. - The devolution of the property of the intestate on the heirs referred to in Cls. (b), (d) and (e) of sub-so (1) and in sub-s.(2) of S. 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the husbands as the case may be, and such person had died intestate in respect thereof immediate after the intestates death." (Emphasis supplied). 13. The instant case will fall under clause (b), sub-section (2) of S. 15, because Mst. 13. The instant case will fall under clause (b), sub-section (2) of S. 15, because Mst. Sukali died issueless and intestated and she inherited the suit land from her husband. 14. Once it is found that the case falls under Section 15(2)(b), the fiction envisaged in Rule 3 of Section 16 is attracted, according to which, for the purpose of ascertaining the order of devolution, it is to be deemed as if the husband had died intestate immediately after the female intestates death. Bearing this fiction in mind I have then to go to the Schedule under Section 8 of the Act to find out as to who would be the heirs of Smt. Sukali's husband on the date of her death. Section 8 of the Act provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :- "(a) ............................., (b) Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) ............................." 15. As per Section 11 of the Act : The property of an intestate shall be divided between the heirs specified in anyone entry in Class II of the Schedule so that they share equally, and heirs specified in Entry I of Class II will take his property in preference to and to the exclusion of the heirs specified in Entry II of Class II. 16. In the instant case, late Bondka i.e. real brother of Chachi was heir of Chachi specified in Entry II of Class II and, therefore, the suit land will be inherited by him in preference to and to the exclusion of respondents, who are neither heirs specified in Entry I nor of Entry II of Class II. 17. In the light of above legal position, it is crystal clear that the courts below have legally erred in declaring plaintiffs/respondents' half share in the suit land. 18. The substantial question of law framed, therefore, is answered in appellants' favour. 19. As a result, the appeal is allowed. Judgment and decree of courts below being not sustainable in law deserve to be and are hereby set aside. 20. Consequently, the plaintiffs' suit is dismissed. 21. In the facts & circumstances of the case, there shall be no order as to costs. 22. Decree be drawn accordingly. Appeal Allowed.