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2012 DIGILAW 84 (CHH)

REETU v. HIRA KUNWAR

2012-03-15

N.K.AGARWAL

body2012
JUDGMENT 1. This is plaintiff's second appeal under Section 100 of CPC against the judgment and decree dated 02.12.1996 passed by the Additional District Judge, Sakti in Civil Appeal No.10-A/1996 reversing the judgment and decree dated 17.05.1996 passed by the Civil Judge Class-2 in Civil Suit No. 32A of 1993. 2. The appeal was admitted for hearing on the following substantial questions of law:- "Whether Hira Kunwar being the daughter of Budhvara Bai from her previous husband, can inherit the property from Budhvara Bai, who has got the same from her second husband Matharu?" 3. Facts, in brief are as follows:- (i) The plaintiff - Reetu brought a suit for declaration of title and to declare the sale deed executed by Hira Kunwar in favour of defendant - Rengtu Chandra and Ramlal Sonar as void and if it is found that plaintiff is not in possession of the suit land, the possession of the suit land be given back to the plaintiff, alleging that the owner of the suit property was late Matharu. After his death, the suit land came into possession of his widow Budhwara. Late Matharu was issueless. Plaintiff, being real brother of late Matharu, inherited the suit property but respondent No.1 - Hira Kunwar, who is daughter of Budhwara from her previous husband, got her name mutated in the revenue records behind his back. (ii) By filing written statement, respondent No.1 denied the claim of the plaintiff. (iii) The trial Court, after recording evidence, decreed the plaintiff's suit for declaration of title, finding inter alia, after the death of Matharu, suit property was inherited by the appellant and respondent No. 1 - Hira Kunwar had no right or title over the suit land and had also no right to alienate the property. (iv) The defendant/respondent No.1 preferred first appeal. The first appellate Court reversed the finding arrived at by the trial Court and dismissed the suit. Hence, this second appeal. 4. Placing reliance upon the judgment of Supreme Court in the case of Lachman Singh Vs. Kirpa Singh and others (1987) 2 SCC 547, Shri Parag Kotecha, learned Senior Counsel appearing for the appellant, would submit: the words "sons and daughters... Hence, this second appeal. 4. Placing reliance upon the judgment of Supreme Court in the case of Lachman Singh Vs. Kirpa Singh and others (1987) 2 SCC 547, Shri Parag Kotecha, learned Senior Counsel appearing for the appellant, would submit: the words "sons and daughters... and the husband" appeared in clause (a) of sub-section (1) of Section 15 of the Hindu Succession Act, 1956 (henceforth' Act of 1956') only mean "sons and daughters...and the husband" of the deceased and not of anybody else. The respondent No.1 - Hira Kunwar, being the daughter of Budhawara Bai from her previous husband, is not entitled to inherit the suit property, within the meaning of Section 15(1)(e) of the Act of 1956 and in the absence of "son or daughter" of the deceased Budhwara Bai from Matharu, the property will devolve upon the appellant, being heir of her husband late Matharu, inasmuch as, the property belonged to deceased Budhwara Bar's husband late Matharu. 5. Per contra, placing reliance upon the judgment of single Bench of M.P. High Court in the case of Bhagwania Vs. Gilli 1977 JLJ 137, Shri H.S. Patel, learned counsel appearing for respondent No.1, would submit: respondent No.1 - Hira Kunwar, being the daughter of Budhwara Bai from her previous marriage, will get the property in preference to the appellant and the appeal is devoid of merit. 6. I have heard learned counsel for the parties and perused the records of both the Courts below including impugned judgment and decree. 7. Section 15 of the Hindu Succession Act reads thus: "15(1).The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16- (a) Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) Secondly, upon the heirs of the husband; (c) Thirdly, upon the mother and father; (d) Fourthly, upon the heirs of the father, and (e) Lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1), (a) any property inherited by a female Hindu from her father or mother 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-section (1) in the order specified therein, but upon the heirs of the father, and (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-section (1) in the order specified therein, but upon the heirs of the husband." 8. The Supreme Court in the case of Lachman Singh Vs. Kirpa Singh and others (1987) 2 SCC 547 (supra) has held: "The words "sons and daughters... and the husband" in clause (a) of sub-section (1) of Section 15 only mean "sons and daughters... and the husband" of the deceased and not of anybody else. The use of the words 'of the deceased' following 'son or daughter' in clauses (a) and (b) of sub-section (2) of Section 15 and absence of the same in sub-section (1) make no difference. 9. The Supreme Court in the case of Bhagat Ram (D) by L.Rs. Vs. Teja Singh (D) by L.Rs. AIR 2002 SC 1, while interpreting the ambit and scope of expression "son and daughter" (including children of any predeceased son and daughter) has held: the source from which a female inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of subsection (2) of S. 15, which gives a special pattern of succession and observed in Para 12 of its judgment as under : "12. We do not think that the law laid down by the learned single Judge in the above said decision is correct. Even if the female Hindu who is having a limited ownership becomes full power by virtue of Section 14(1) of the Act, the rules of succession given under sub-section (2) of Section 15 can be applied. We do not think that the law laid down by the learned single Judge in the above said decision is correct. Even if the female Hindu who is having a limited ownership becomes full power by virtue of Section 14(1) of the Act, the rules of succession given under sub-section (2) of Section 15 can be applied. In fact, the Hindu Succession Bill, 1954 as originally introduced in the Rajya Sabha did not contain any clause corresponding to sub-section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The reason given by the Joint Committee is found in Clause 17 of the Bill, which reads as follows: "While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that, properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass." 10. The Single Bench of High Court of Gauhati in the case of Smt. Dhanistha Kalita Vs. Ramakant Kalita and others AIR 2003 Gauhati 92, placing reliance upon the judgment of Supreme Court in the case of Bhagat Ram (D) by L.Rs. Vs. Teja Singh (D) by L.Rs. AIR 2002 SC 1(supra) has held in Para 20 of its judgment as under: "20. Since the object of S.15(2) is to ensure that the property left by a Hindu female does not lose the real source from where the deceased female had inherited the property, one has no option but to hold that son or daughter (including the children of any predeceased son or daughter) of such a Hindu female will mean the son or daughter begotten by the Hindu female from the husband whose property she had inherited and not the son or daughter whom she had begotten from a husband other than the one, whose property she had inherited. If such property is allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of S.15 (2) will be defeated. If such property is allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of S.15 (2) will be defeated. In other words, if such a property is allowed to be inherited by a son or daughter, whom the deceased female had begotten not through her husband, whose property it was, but from some other husband (whose property it was not), then, S.15(2)(b) will become meaningless and redundant. Notwithstanding, therefore, the fact that a female Hindu becomes a full-fledged owner of the property inherited by her from her husband, the property, on her death, will pass over to, and devolve upon, only those sons and daughters, whom she had begotten from her husband, whose property she had inherited and if there is no such issue or if such issue is not alive, then, the property, instead of devolving upon the sons or daughters whom she might have begotten from another person as husband, will devolve upon the heirs of her deceased husband, whose property she had inherited. Viewed from this angle, it becomes clear that since Jagat Kalita was not born to Mahesari out of her wedlock with Shyamrai Jagat Kalita, on Maheswari's death, did not become entitled to the properly and, thus, when Jagat Kalita was not entitled to the property, question of the appellant, Dhanistha, succeeding to the property did not arise at all. The property, therefore, on the death of Maheswari, devolved upon the heirs of Shyamrai and when looked from this angle, the plaintiffs became the owners of the suit land as great grandchildren of Shyamrai. However, since there is no cross objection against decrees granted by the learned Courts below, I am not inclined to disturb the findings and or the decree impugned in this appeal" 11. In view of the ratio of law laid down by the Supreme Court and also by the Gauhati High Court, to which, I am in respectful agreement, it is crystal clear that the words "sons and daughters...and the husband" appeared in clause (a) of sub-section (1) of Section 15 of the Act of 1956 only mean "sons and daughters... and the husband of the deceased" and not of anybody else. and the husband of the deceased" and not of anybody else. The use of the words 'of the deceased' following 'son or daughter' in clauses (a) and (b) of sub-section (2) of Section 15 and absence of the same in subsection (I) make no difference. 12. The Single Bench of High Court of Madhya Pradesh in the case of Bhagwania Vs. Gilli 1977 JLJ 137 (supra) has held as under:- In case of a female intestate, who had remarried after the death of the husband or after divorce, her sons by different husbands would all be her natural sons and entitled to inherit the property left by the female Hindu, regardless of the source of the property." 13. The above ratio of law laid down by the M.P. High Court, on the face, runs counter to the ratio of law laid down by the Supreme Court in Lachman Singh Vs. Kirpa Singh and others (1987) 2 SCC 547 (supra), and therefore, is of no help to respondent No.1. 14. For the reasons mentioned hereinabove, the substantial question of law formulated by this Court is answered in favour of the appellant. 15. In the result, the appeal is allowed. The judgment and decree impugned passed by the first appellate Court is set aside and the judgment and decree passed by the Court below is restored. 16. No order as to costs. 17. A decree be drawn accordingly. Appeal Allowed.