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2013 DIGILAW 526 (UTT)

JOG MAYA v. CHANDRAVATI

2013-08-14

PRAFULLA C.PANT

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JUDGMENT Hon’ble Prafulla C. Pant, J. This second appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 22.11.2002 passed by Additional District Judge/IVth Fast Track Court, Dehradun, in Civil Appeal No. 112 of 2000 whereby said court has allowed the appeal, and set aside the judgment and decree dated 18.11.2000, passed by the trial court (IVth Additional Civil Judge Senior Division, Dehradun) in Suit No. 729 of 1994. 2. Heard learned counsel for the parties, and perused the record. 3. Brief facts of the case are that one Ram Avtar was a permanent lessee over the property No. 33/31 (old no. 33/35) situated in Bindalwala, Dehradun, measuring 1,185 square feet. Plaintiff Sant Ram (since died) was son of Ram Avtar through his first wife Kallo Devi who died in the year 1936. Thereafter, Ram Avtar got remarried to defendant No.1 Kesariya (since died), and through said wedlock a daughter named Jog Maya (defendant No.2) was born. On 28.02.1947, Ram Avtar died leaving behind him Sant Ram (son), Jog Maya (daughter) and widow Kesariya. All the three heirs continued to live in the house (above mentioned property) left by Ram Avtar. 4. Plaintiff Sant Ram filed a suit in the year 1994, seeking the declaration that he is the sole owner of the house in question. The defendants Kesariya and Jog Maya contested the suit, and filed their written statements denying the full title of the plaintiff Sant Ram. They pleaded that in the municipal record their names are also entered as co-owners. They further pleaded that they are in possession of the property as co-owners, and suit of the plaintiff is liable to be dismissed. 5. On the basis of the pleadings of the parties, the trial court framed following issues :- (i) Whether the plaintiff is the sole owner of the disputed property No. 33/31 situated in Bindalwala, Dehradun ? (ii) Whether order dated 11.09.1991 passed by defendant No. 3 Nagar Palika (regarding mutation of the defendant No.1 and 2) is null and void ? (iii) Whether original owner of the property was Ram Avtar, if so its effect ? (iv) To what relief, if any, the plaintiff is entitled ? 6. (ii) Whether order dated 11.09.1991 passed by defendant No. 3 Nagar Palika (regarding mutation of the defendant No.1 and 2) is null and void ? (iii) Whether original owner of the property was Ram Avtar, if so its effect ? (iv) To what relief, if any, the plaintiff is entitled ? 6. The trial court after recording the evidence of the parties and hearing them, came to the conclusion that the plaintiff Sant Ram, and his step sister Jog Maya have equal shares in the property in suit, and as such, dismissed the suit of the plaintiff to declare him as a sole owner, with the observation that the defendant Nos. 1 and 2 had equal shares. 7. Aggrieved by said judgment and decree dated 18.11.2000, passed by the trial court, plaintiff Sant Ram filed Civil Appeal No. 112 of 2000, which was allowed by the lower appellate court holding that the plaintiff Sant Ram is the sole owner of the property. Aggrieved by said judgment and decree dated 22.11.2002 passed by Additional District judge/IV Fast Track Court, Dehradun, in Civil Appeal No. 112 of 2000, this second appeal was filed by the defendant No.2 Jog Maya. 8. The second appeal was admitted by this court on following two substantial questions of law :- (i) Whether the right of a Hindu female can be curtailed in contradiction of section 14 of Hindu Succession Act, 1956? (ii) Whether after death of the father, his daughter got only right of residence or absolute right in the property? Answer to substantial questions of law mentioned above:- 9. Admittedly one Ram Avtar was a permanent lessee of the property in Suit No. 33/31 situated in Bindalwala, Dehradun, measuring 1,185 square feet. It is also not disputed that plaintiff Sant Ram (since died) was son of Ram Avtar. From the evidence on record, it is also clear that after death of Kallo Devi (mother of Sant Ram), Ram Avtar got remarried to defendant No.1 Kesariya (since died) through whom defendant No. 2 Jog Maya (present plaintiff) born out of the wedlock. It is also not disputed that Ram Avtar died on 28.02.1947. From the evidence on record, it is also established that at the time of death Ram Avtar he left behind him Sant Ram (son), Jog Maya (daughter) and Kesariya (widow) as his heirs. 10. It is also not disputed that Ram Avtar died on 28.02.1947. From the evidence on record, it is also established that at the time of death Ram Avtar he left behind him Sant Ram (son), Jog Maya (daughter) and Kesariya (widow) as his heirs. 10. Under the old Hindu Law plaintiff Sant Ram, being son of Ram Avtar inherited his property (except the right of his step mother and step sister), and defendants Kesariya (widow of the deceased) and Jog Maya (daughter of the deceased) inherited limited right under Hindu Women’s Right to Property Act, 1937. After Hindu Succession Act, 1956, came into force, limited interest of the female Hindu in the family became her absolute right. Sub section (1) of section 14 of Hindu Succession Act, 1956, 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 a full owner thereof and not as a limited owner. There is concurrent findings of fact of the courts below that Kesariya (defendant No.1) and Jog Maya (defendant No.2) were living in the same house till the institution of the suit in the year 1994, as such, they acquired full ownership to the extent to their share under Hindu Succession Act, 1956. After death of Kesariya during the pendency of the suit her share got equally divided between plaintiff Sant Ram and defendant No.2 Jog Maya, as such, both of them are co-owners of equal half shares in the property in suit. 11. In the above circumstances, the trial court has rightly dismissed the suit of the plaintiff to the extent that he cannot be declared full owner, instead he was declared co-owner to the extent of half share, with remaining half share of defendant No.2 Jog Maya. Therefore, this court is of the view that the lower appellate court has taken a wrong approach in appreciating the law applicable to the case in holding that the defendants Nos. 1 and 2 had limited share and no more than that. In Kalawatibai vs. Soiryabai and others (1991) 3 SCC page 410 the Apex Court has held that Explanation of section 14 (1) of Hindu Succession Act, 1956, widens the meaning of property by adding to it, the inherited property, and the property which came to be possessed by a female Hindu in the manner mentioned in it. In Kalawatibai vs. Soiryabai and others (1991) 3 SCC page 410 the Apex Court has held that Explanation of section 14 (1) of Hindu Succession Act, 1956, widens the meaning of property by adding to it, the inherited property, and the property which came to be possessed by a female Hindu in the manner mentioned in it. 12. Therefore, for the reasons as discussed above both the substantial questions of law stands answered in favour of the appellant. 13. Therefore, this second appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned judgment and decree dated 22.11.2002 passed by Additional District Judge/IVth Fast Track Court, Dehradun, in Civil Appeal No. 112 of 2000 is hereby set aside, and the judgment and decree dated 18.11.2000, passed by the trial court i.e. Civil Judge IVth, Senior Division, Dehradun, in Suit No. 729 of 1994 is restored. However, no order as to costs.