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2012 DIGILAW 782 (GAU)

Hemanta Das v. Kiran Hazarika

2012-06-25

BROJENDRA PRASAD KATAKEY

body2012
JUDGMENT Hon'ble Mr. Justice B.P. Katakey 1. This appeal by the heirs of the original plaintiff is directed against the judgment and decree dated 18.8.2000 passed by the learned Civil Judge, (Senior Division) No. 1, Kamrup at Guwahati in Title Appeal No. 47/1996 allowing the appeal preferred by the defendant Nos. 1 and 2 and by setting aside the judgment and decree dated 6.9.1996 passed by the learned Munsiff No. 3, Kamrup at Guwahati in Title Suit No. 77/1988 whereby and wherunder the plaintiff's suit was decreed. The predecessor-in-interest of the present appellants instituted Title Suit No. 181/1985 in the Court of the learned Munsiff, Guwahati, which in due course of time was transferred to the court of the learned Munsiff No. 3, and was renumbered as Title Suit No. 77/1988. The pleaded case of the plaintiff in the plaint is that her father Sachi Bhusan Hazarika died in the year 1949 leaving behind two wives namely; Golmai and Hareswari. While the defendant Nos. 1 and 2 are the sons of Sachi Bhusan Hazarika through the first wife Golmai, the original plaintiff and the defendant Nos. 3, 4 and 5 are the sons and daughters of Sachi Bhusan Hazarika through the second wife Hareswari. During pendency of the suit the original plaintiff Bijuli expired and hence the present appellants were substituted in place of the original plaintiff. According to the plaintiff, Sachi Bhusan Hazarika was the owner of 3 kathas 7 lechas of land out of which the defendant Nos. 1, 2, 3 and 4 sold 1 katha 5 lechas of land to Sushila @ Surila Devi, proforma defendant No. 6 by registered deed of sale dated 18.2.1976, leaving 1 katha 18 lechas to be inherited by the sons and daughters of Sachi Bhusan Hazarika through the two wives in equal proportion. The plaintiff has claimed 1/5th share of the land measuring 1 katha 18 lechas being one of the daughters of Sachi Bhusan Hazarika and as Hiran, the second son of Sachi Bhusan Hazarika through Golmai during pendency of the suit expired unmarried. 2. The suit was contested by the defendant Nos. 1 and 2 by filing a joint written statement. A written statement was also filed by the defendant Nos. 3, 4 and 5 supporting the claim of the plaintiff. The defendant No. 6 however, did not contest the suit. The defendant Nos. 2. The suit was contested by the defendant Nos. 1 and 2 by filing a joint written statement. A written statement was also filed by the defendant Nos. 3, 4 and 5 supporting the claim of the plaintiff. The defendant No. 6 however, did not contest the suit. The defendant Nos. 1 and 2 in the written statement has taken the stand that as Sachi Bhusan Hazarika died prior to the Hindu Succession Act, 1956 (in short the 1956 Act) came into force neither Hareswari, one of the wives nor Bijuli the original plaintiff would inherit any property left by Sachi Bhusan Hazarika. It has also been pleaded that Bijuli having been married in the year 1954 and being not in possession of any land originally belonged to Sachi Bhusan Hazarika, she is not entitled to the benefit of Section 14 of the 1956 Act. It has, however, been admitted that Bijuli, the original plaintiff had a limited ownership over the land of Sachi Bhusan Hazarika without any right to claim partition and inheritance. 3. The trial court on the basis of the pleadings of the parties framed the following issues for determination: 1. Whether there is any cause of action for the suit? 2. Whether plaintiff has right, title and interest over 1/6th share of the property of late Sachi Bhusan Hazarika including the suit property? 3. Whether the suit is time barred by limitation? 4. Whether the plaintiff is entitled to a decree as prayed for? 5. Whether the suit is liable without joining other suit of late Sachi Bhusan Hazarika and Sushila Devi is a necessary party? 6. To what relief if any, the plaintiff is entitled? 7. Whether the suit is properly valued and court fee paid? Additional Issues : 8. Whether the suit is maintainable in its present form in view of the provision contained in the Partition Act? 9. Whether the plaintiffs Smti. Bijulibala Das (since expired) was the daughter and legal heir of late Sachi Bhusan Hazarika? 10. Whether there is proper identification of the suit land? 11. Whether the suit is collusive in nature due to collusion between the plaintiff and proforma defendant Nos. 2, 3 and 4? 4. 9. Whether the plaintiffs Smti. Bijulibala Das (since expired) was the daughter and legal heir of late Sachi Bhusan Hazarika? 10. Whether there is proper identification of the suit land? 11. Whether the suit is collusive in nature due to collusion between the plaintiff and proforma defendant Nos. 2, 3 and 4? 4. The trial court has decreed the suit of the plaintiffs by holding that they are entitled to the decree for declaration of their right in respect of 1/5th share of the suit land and also for partition, by virtue of the provisions contained in Section 14 of the 1956 Act. The issue relating to limitation has also been decided in favour of the plaintiffs. 5. Being aggrieved the defendant No. 1 preferred Title Appeal No. 47/1996, as the defendant No. 2 died during pendency of the suit and accordingly his name was struck out, he having died unmarried. The said appeal has been allowed by the first appellate court by the impugned judgment and decree passed by holding that in the absence of any gift or will or any other instrument, as provided under Sub Section (2) of Section 14 of the 1956 Act, the original plaintiff Bijuli, who has limited ownership, cannot become full owner of the property left behind by Sachi Bhusan Hazarika by virtue of Sub Section 1 of Section 14 of the said Act. The first appellate court has also answered the issue No. 3 relating to limitation in favour of the defendants and against the plaintiffs by holding that the suit having not been instituted within twelve years is hit not only by Article 65 but also by Article 110 of the Limitation Act, 1963. Hence the present appeal. 6. The appeal was admitted for hearing vide order dated 5.1.2001 on the following substantial questions of law: - 1. Whether the learned lower appellate court was right in rejecting the claim of the plaintiff without considering the fact that the original plaintiff and her sister Angoorbala (defendant No. 5) were unmarried daughters of Sachi Bhusan, who died in 1949? 2. Whether the learned lower appellate court was justified in dismissing the plaintiff's suit by applying the provisions of the Hindu Succession Act, 1956? 3. 2. Whether the learned lower appellate court was justified in dismissing the plaintiff's suit by applying the provisions of the Hindu Succession Act, 1956? 3. Whether the judgment and decree of the learned lower appellate court, which was rendered without considering the Hindu Law as was applicable at the time of the death of Sachi Bhusan in 1949, is sustainable? 4. Whether the learned lower appellate court was right in its interpretation of Section 14 of the Hindu Succession Act, 1956, so far as relating to the share of Hareswari the widow of late Sachi Bhusan? 7. I have heard Ms T Goswami, learned counsel for the appellants as well as Mr. Kalita, learned counsel appearing for the respondent No. 1/defendant No. 1. None appears for the other respondents. 8. Referring to the provisions of Section 14 of the 1956 Act, it has been contended by Ms Goswami, learned counsel for the appellants that since by virtue of Sub Section (1) of Section 14 of the 1956 Act, the right of a female Hindu with limited ownership over the property has been conferred the right of full ownership, the first appellate court ought not to have allowed the appeal preferred by the defendant No. 1 by holding that in absence of any written instrument, a female Hindu having a limited ownership, will not become a full owner of the property, which interpretation, according to the learned counsel, is contrary to the provision of Section 14 of the 1956 Act as well as the law laid down by the Apex Court in Kalawatibai vs. Soiryabai & Ors., reported in (1991) 3 SCC 410 . The learned counsel further submits that the issue of limitation i.e. issue No. 3 has also wrongly been decided by the first appellate court as the period of limitation under Article 65 would begun to run when the possession of the defendant becomes adverse to the plaintiff and under Article 110 it would begun to run when the exclusion becomes known to the plaintiff. The learned counsel submits that since the original plaintiff's exclusion from the joint property was known to her on filing of the proceeding for partition before the Revenue authority in the year 1994, the suit of the plaintiff cannot held to be barred by time, the same having been filed within 12 years therefrom. The learned counsel submits that since the original plaintiff's exclusion from the joint property was known to her on filing of the proceeding for partition before the Revenue authority in the year 1994, the suit of the plaintiff cannot held to be barred by time, the same having been filed within 12 years therefrom. The learned counsel further submits that the possession of one co-sharer being the possession on behalf of all other co-sharers there cannot be any question of adverse possession and Article 65 of the Limitation Act would not be applicable in the case in hand. Ms Goswami, therefore, submits that the judgment and decree passed by the courts below requires interference in second appeal. 9. Per contra, Mr. Kalita, learned counsel appearing for the respondent No. 1 submits that as the original plaintiff Bijuli married in the year 1954 i.e. prior to coming into force of the 1956 Act and continuously staying with her husband without possessing any land belonged to Sachi Bhusan, she cannot get the benefit of full ownership by virtue of Sub Section (1) of Section 14 of the 1956 Act as a female Hindu, by virtue of the said provision, becomes a full owner on fulfillment of two conditions, namely she must be in possession of the property and had limited ownership. The learned counsel submits that prior to the 1956 Act a female Hindu has only limited ownership and has no right to claim partition and hence the plaintiff's suit for declaration of her right over the suit land and also partition has rightly been dismissed by the first appellate court by setting aside the judgment and decree passed by the trial court. 10. I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by the learned courts below. 11. It is not in dispute that Sachi Bhusan Hazarika had two wives namely, Golmai and Hareswari. While the defendant Nos. 1 and 2 are the sons of Golmai, the original plaintiff Bijuli, and defendant Nos. 3, 4 and 5 are the sons and daughters of Sachi Bhusan through Hareswari. Hareswari died after coming into force of the 1956 Act. 11. It is not in dispute that Sachi Bhusan Hazarika had two wives namely, Golmai and Hareswari. While the defendant Nos. 1 and 2 are the sons of Golmai, the original plaintiff Bijuli, and defendant Nos. 3, 4 and 5 are the sons and daughters of Sachi Bhusan through Hareswari. Hareswari died after coming into force of the 1956 Act. The original plaintiff instituted the suit for declaration of right, title and interest in respect of 1/5th share of the suit land measuring 1 katha 18 lechas being one of the heirs of Sachi Bhusan as the defendant No. 2 died unmarried during pendency of the suit. 12. Prior to the 1956 enactment the right of a female Hindu over the property was limited. After enactment of 1956 Act, a right has been created in favour of a female Hindu over the property possessed by her as full owner provided she had a limited ownership over the property prior to 1956 Act, by virtue of Section 14 thereof. Sub Section (1) of Section 14 of the 1956 Act provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner and not as a limited owner. 13. Explanation to Sub Section (1) of Section 14 of the 1956 Act further explains that the '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 the marriage, by her own skill or execution, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhan immediately before the commencement of the Act. A female Hindu, therefore, would acquire the full ownership by right of inheritance provided she is in possession of the property and had limited ownership. A female Hindu, therefore, would acquire the full ownership by right of inheritance provided she is in possession of the property and had limited ownership. Sub Section (2) of Section 14 of the 1956 Act provides that the provision of Sub Section (1) shall not 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 instruments or the decree, order or award prescribe a restricted estate in such property. 14. Reading of both the provisions of Sub Section (1) and Sub Section (2) of Section 14 of the 1956 Act, therefore, makes it clear that a Hindu female in possession of the property, who has limited ownership, would not acquire the full ownership if she has acquired any property by gift or will etc. which prescribes a limited estate in such property. 15. The Apex Court in Kalawatibai (supra) while interpreting the provision of Section 14 of the 1956 Act has held that a limited owner becomes a full owner provided she is a female Hindu who was in possession of any property before the commencement of the Act. It has also held that a female Hindu becomes an absolute owner not only in respect of property inherited but also in respect of the property received by way of gift or on partition or in lieu of maintenance provided she was a limited owner. 16. The first appellate court has dismissed the suit by allowing the appeal preferred by the defendant by holding that the original plaintiff would not be entitled to the benefit of Section 14 of the 1956 Act as there is no gift or any other instrument made in her favour prior to coming into force of the 1956 Act. In other words it has been held by the first appellate court that the benefit of Section 14(1) of the 1956 Act would be available to a female Hindu who has a limited ownership provided there is a gift or other instrument as mentioned in Sub Section (2) of Section 14 of the 1956 Act is made in her favour. Such interpretation is contrary to the provision of Section 14 of the 1956 Act and also the judgment pronounced by the Apex Court. Such interpretation is contrary to the provision of Section 14 of the 1956 Act and also the judgment pronounced by the Apex Court. The interpretation as has been given by the first appellate court, if accepted would amount to negating the benefit which has been given to a female Hindu by Sub Section (1) of Section 14 of the 1956 Act. 17. As noticed above, the first appellate court has also held the suit of the plaintiff as barred by time for not bringing the suit within 12 years, as required under Article 65 and Article 110 of the Limitation Act, without, however, discussing anything relating to the date when the original plaintiff came to know about her exclusion from the joint property and whether there can be any claim for adverse possession by a co-owner. The necessary evidences adduced by the parties in that regard have also not been discussed by any of the courts below. 18. As discussed above, one of the conditions which is to be satisfied by a female Hindu to get the full ownership, under Section 14(1) of the 1956 Act, is that the female Hindu must be in possession of the property on the date of commencement of the 1956 Act. None of the courts below have discussed anything in that regard, though according to the defendants, Bijuli, the original plaintiff was married in the year 1954 i.e. two years prior to commencement of the 1956 Act and was all along with her husband thereafter, and according to the plaintiff she was married after the commencement of the 1956 Act. 19. That being the position, while setting aside the judgment and decree passed by the first appellate court the case is remitted to the first appellate court, namely; the court of the learned Civil Judge, No. 1, Kamrup at Guwahati for deciding the appeal afresh on the basis of the evidences already available on record, which shall be done within a period of two months from the date of appearance of the parties as fixed by this Court. 20. The parties shall appear before the first appellate court on 9.8.2012. 21. The Registry is directed to send down the records to the first appellate court forthwith so that the records reach the said court on or before 18.7.2012. The appeal is accordingly allowed is indicated above no cost. Appeal allowed.