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2012 DIGILAW 267 (CAL)

Hanswati v. The Andaman & Nicobar Administration

2012-03-30

JYOTIRMAY BHATTACHARYA, RAGHUNATH BHATTACHARYA

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Judgment :- Jyotirmay Bhattacharya, J. This mandamus appeal is directed against the judgment passed by a learned Single Judge of this Court on 20th December, 2011 in W.P. No.1343 of 2011 whereby the writ petitioner’s prayer for issuance of direction upon the concerned Tehsildar for mutating her name as owner of the property-in-question was rejected by the learned Single Judge. While rejecting the said writ petition, the learned Single Judge however observed that it would be open to the writ petitioner to approach a Civil Court of competent jurisdiction to have her title established in respect of the property-in-question and only thereafter approach the Tehsildar, Port Blair for mutation. Being aggrieved by the said order passed by the learned Single Judge in the said writ petition, the writ petitioner has filed the instant appeal. Let us now consider as to how far the order which is impugned in this appeal, can be sustained in the facts of the instant case. It is no doubt true that a dispute relating to a complicated question of title between the parties claiming conflicting right over a property-in-question, normally cannot be decided by the Writ Court where such disputed question relating to title of the contesting parties in the property, is required to be decided on trial of evidence. But, if the facts are not disputed and the inheritance of the parties to the estate of the deceased is not disputed, then this Court, with no hesitation, holds that instead of relegating the parties to the suit, the Writ Court itself can issue necessary direction upon the concerned authority for mutating the names of the parties who inherited the property-in-question on the death of the recorded owner, as owners thereof. Let us now consider the facts of the instant case by keeping in mind the aforesaid basic principle of settled law. Admittedly, the property-in-question was owned by the father of Nagesh Lall. It is also an admitted fact that the father of Nagesh Lall gifted the said property in favour of Nagesh Lall. Thus Nagesh Lall became the owner of the said property by virtue of the deed of gift executed by his father in his favour. The said Nagesh Lall subsequently died intestate leaving his mother, the appellant herein, his widow, the respondent no.4 and his daughter, the respondent no.5 herein as his only heirs under Hindu Law. Thus Nagesh Lall became the owner of the said property by virtue of the deed of gift executed by his father in his favour. The said Nagesh Lall subsequently died intestate leaving his mother, the appellant herein, his widow, the respondent no.4 and his daughter, the respondent no.5 herein as his only heirs under Hindu Law. Thus, the appellant, the respondent no.4 and the respondent no.5 who are the legal heirs of the said deceased owner, jointly inherited the interest of Nagesh Lall in the said property and they became the owners of the said property jointly. Though it is pointed out by the learned advocate appearing for the respondent nos.4 and 5 that the father of Nagesh Lall is still alive but he being the Class-II heir cannot inherit any interest in the suit property on the death of his son as the deceased left his aforesaid Class-I heirs who jointly inherited the said property. Section 8 of the Hindu Succession Act, 1956 provides that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II of the said Act in the following manner:- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (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) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. Following the provision of section 8 of the said Act this Court has no hesitation to hold that since the Class-I heirs of the said Nagesh Lall, since deceased, are available in the instant case, the father of Nagesh Lall who is the Class-II heir, cannot succeed to the estate of his son, since deceased. Thus, considering the admitted facts relating to the relationship of the parties to the said Nagesh Lall, this Court holds that there is no need for relegating the parties to the suit for declaration of their right, title and interest in the said property. The order which is impugned in this appeal, in our considered opinion, thus cannot be retained on record. The impugned order thus stands set aside. The order which is impugned in this appeal, in our considered opinion, thus cannot be retained on record. The impugned order thus stands set aside. The concerned Tehsildar, Port Blair is thus directed to mutate the names of the appellant and the respondent nos.4 and 5 who jointly inherited the right, title and interest of Nagesh Lall upon his death by way of succession, as joint owners of the said property, without insisting upon production of succession certificate, as it was rightly held by the learned Single Judge, that there is no law under which succession certificate can be granted by the Court to prove succession of a claimant to the estate of a deceased in respect of any immovable property left by the deceased. Such exercise should be completed within eight weeks from the date of communication of this order. The appeal thus stands allowed. Raghunath Bhattacharya, J. I agree.