JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri D.P. Dwivedi, learned counsel for the appellant, Sri H.N.B. Sinha, learned counsel for the respondents and perused the record. 2. The controversy involved in the present case relates to abadi land marked by letters Ka. Kha. Ga. Gha. And Ka. Ga. Cha. Chha. in the map attached with the paint, situated in village Barmauli Pargana Baraunsa, Tahsil and District Sultanpur. 3. Further in the instant appeal, the following pedigree is admitted between the parties : DwarikaPrasad Shivabadan Indar Umadutt Muneshwar Nakched Ramjeet Ram Lakhan (D.issuless) (D. Issueless) (Plaintif) Bhagwat Badri Mst. Rajdei @ Chhatanka Mst. Dhanraji @ Hurjhuda (D. issue less) (D. Issueless) Jwala Pd. (D. Issueless) Sarvajit Kunjbehari Shyambehari Ram Kumar Shiv Kumar Parsnath Shambhnath Kali Prasad Ram Charitra Ram Newal Ram Milan Ram Newaj Ram Bahore 4. It is also not disputed between the parties that the land in question belongs to Uma Dutt and after his death succeeded by his son Bhagwat and Badri thereafter by their widow Smt. Rajdei and Smt Dhanraji thus they are owner in possession of the aforesaid property respectively. 5. As per the case of the plaintiff, Smt Rajdei and Smt. Dhanraji had died as such plaintiff/Ram Lakhan being agnate/legal representative succeeded the house the land appurtenant to it and in possession. 6. In view of the said factual background, plaintiff-Ram Lakhan son of Muneshwar (brother of Uma Dutt), has filed a suit for declaration and permanent injunction, registered as regular suit 235 of 1982 in the Court of II Additional Munsif, Sultanpur. In the said matter, a written statement has been filed by defendant Nos. 1 to 3, namely, Ram Milan, Ram Newaj and Ram Bahore son of Ram Newal. 7. In the written statement, the pedigree has not been disputed and also not in dispute that house/land in dispute belongs to Uma Dutt thereafter the same belongs to Bhagwat and Badri and after their death came to Mst. Smt. Rajdei and Mst. Smt Dhanraji being their legal heirs /representatives. However, defendant in their written statement has pleaded that Mst. Smt. Rajdei and Mst. Smt Dhanraji executed a unregistered Will on 10.6.1972 of the property in question in favour of defendants No. 1 to 3 and since then they are in possession, settled with them under Section 7 and 9 of U.P. Z.A. & L.R. Act (U.P. Act No. 1 of 1961). 8. Smt. Rajdei and Mst. Smt Dhanraji executed a unregistered Will on 10.6.1972 of the property in question in favour of defendants No. 1 to 3 and since then they are in possession, settled with them under Section 7 and 9 of U.P. Z.A. & L.R. Act (U.P. Act No. 1 of 1961). 8. So far as defendant No. 4 to 6, namely, Ram Kumar, Paras Nath and Sambhoo Nath are concerned, they had entered into a compromise with the plaintiff. 9. The trial Court on the basis of material on record, documentary as well as oral evidences, namely, P.W. 1 Nand Kumar and D.W.-2 Ram Bahore came to the conclusion that land in dispute has been succeeded by plaintiff and further held that defendants have failed to prove their case that the land in question came to them by way of unregistered Will and also in regard to their case of adverse possession. 10. Accordingly by means of judgment and decree dated 12.12.1985 allowed the suit. Aggrieved by the said facts, defendants, namely, Ram Millan, Ram Newaj and Ram Bahore filed the appeal (Appeal No. 13 of 1986, Ram Milan and others v. Ram Lakhan and others). 11. Appellate Court/II Additional District Judge, Sultanpur while passing the impugned judgment given a finding that plaintiff cannot get property in dispute by way of inheritance as Nakchhed son of Muneshwar, brother of Uma Dutt, has three daughters, said facts has been admitted by him in his cross-examination as well as in respect to agriculture property which belongs to Mst. Smt. Rajdei and Mst. Smt Dhanraji, the same has been devolved in three parts and 1/3 share has been inherited by the plaintiff and other by defendants so they are being co sharer in respect to said immovable property, accordingly the appellate Court came to the conclusion that the relief as claimed by the plaintiff/appellant in the suit cannot be granted and held that plaintiff has to seek for partition. 12. In addition to above said fact, the appellate Court has given a finding that defendants were unable to establish the genuineness of the unregistered Will dated 10.6.1972 executed by Smt.Dhanraji and Smt. Rajdei. 12. In addition to above said fact, the appellate Court has given a finding that defendants were unable to establish the genuineness of the unregistered Will dated 10.6.1972 executed by Smt.Dhanraji and Smt. Rajdei. No probate had been obtained in respect of the aforesaid document and even P.W. 1 Nand Kumar and D.W.-2 Ram Bahore have given contradictory and unreliable statement in respect of aforesaid Wills, it is also held by appellate Court that defendants failed to establish their case in respect to adverse possession, and by means of judgment and decree dated 28.11.1988 allowed the appeal. 13. In view of the said factual background, present second appeal has been filed, admitted on the following question of law : “Whether devolution of property in suit would be in accordance with the law contemplated under Section 15(b) and 12 Rule (1) of the Hindu Succession Act, 1956 and the plaintiff appellant is the sole successor of the property in suit?” 14. It is will be relevant to mention that judgments and decrees passed by the trial Court as well as appellate Court are not challenged by the defendants/respondents. 15. Sri Sharad Dwivedi, learned counsel for the appellant submits that the trial Court has not considered the mandatory provisions as provided under Section 15 (2) (b) read with Section8 (c) and Rule 3 of Section 16 and Section 12(1) of the of the Hindu Succession Act, 1956 (herein after referred to as an ‘Act’). By virtue of said section, the plaintiff being an agnate of the deceased Mst. Rajdei and Mst. Dhanraji inherited/succeeded of the property in question. In support of his arguments he has placed reliance on the judgments given Hon’ble the Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and other, AIR 1999 SC 2213 and Kashmir Singh v. Harnam Singh and another, 2008 AIR SCW 2417. 16. Next arguments advanced by learned counsel for the appellant is that in the pleadings no where is pleaded by either of the parties in respect to the case of daughters of Nakched son of Muneshwar that they have any share or they are alive when Mst. Rajdai and Mst. Dhanraji had died. 16. Next arguments advanced by learned counsel for the appellant is that in the pleadings no where is pleaded by either of the parties in respect to the case of daughters of Nakched son of Muneshwar that they have any share or they are alive when Mst. Rajdai and Mst. Dhanraji had died. The said has not even been disputed by the defendants in their cross-examination so only on the statement of plaintiff /Ram Lakhan that Nakched has three daughters, namely, Ram Dulari, Suryapati and Janki in the cross-examination and there is no averment in respect to time of death of daughters of Nakched and the pedigree is admitted, the action on the part of appellate authority to carve out a new case not pleaded by either of the parties that Sri Nakched has daughters as such plaintiff cannot get property in question by way of succession is an exercise which is contrary to law. 17. He further submits that even if it is assumed that Nakched has three daughters then as per the provisions as provided under Section 15 (2) (b) read with Section 12(1) and 8(c) of the Act, plaintiff /Ram Lakhan being the son of Muneshwar, who is brother of Uma Dutt, so he would inherit /succeed the property in question as such the impugned judgment passed by the appellate Court being contrary to the facts against the evidence on record, perverse in nature, liable to be set aside. 18. Sri H.N.B. Sinha, learned counsel for the respondents while defending the impugned judgment has submitted the appellate Court after taking into consideration the fact that the plaintiff has failed to prove his case on the basis of cogent evidence as well as taking into consideration that the plaintiff has got 1/3 share of the agriculture property Smt. Rajdei and Smt Dhanraji and 1/3 Share has been given to other co owners so there is not illegality or infirmity in the impugned judgment under challenge in the present appeal, liable to be dismissed. 19. I have heard learned counsel for the parties and going through the record 20. The statutory provision regarding the rules of succession in case of female Hindus as enacted in Section 15 of the Hindu Succession Act, 1956 is as follows: Section 15. 19. I have heard learned counsel for the parties and going through the record 20. The statutory provision regarding the rules of succession in case of female Hindus as enacted in Section 15 of the Hindu Succession Act, 1956 is as follows: Section 15. General rules of succession in the case of female Hindus.—(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 the 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. 21. A perusal of the aforesaid provisions would show that the basic aim of Section 15(2) is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source. It was enacted to prevent inherited property falling into the hands of strangers. This is also evident from the recommendations of the Joint Committee of the Houses of Parliament, which have been duly noticed in the case of State of Punjab v. Balwant Singh, 1992 (3) Supp SCC 108. The scheme underlying the introduction of the aforesaid provision had been discussed as follows: “It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The scheme underlying the introduction of the aforesaid provision had been discussed as follows: “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. The report of the Joint Committee which was accepted by Parliament indicates that Sub-section (2) of Section 15 was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands of persons to whom justice would demand that they should not pass. That means the property should go in the first instance to the heirs of the husband or to the source from where it came.” 22. Hon’ble the Apex Court in the case of V. Dandapani Chettiar v. Balasubramanian Chettiar, (2003) 6 SCC 633 , in regard to the scheme of the aforesaid section held as under : “9. The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the Act. This section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified in Sub-section (1). Two exceptions, both of the same nature are engrafted by Sub-section (2) on the otherwise uniform order of succession prescribed by Sub-section (1). This section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified in Sub-section (1). Two exceptions, both of the same nature are engrafted by Sub-section (2) on the otherwise uniform order of succession prescribed by Sub-section (1). The two exceptions are that if the female dies without leaving any issue, then (1) in respect of the property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five Entries (a) to (e), but upon the heirs of the father; and (2) in respect of the property inherited by her from her husband or father-in-law, it will devolve not according to the order laid down in the five Entries (a) to (e) of Sub-section (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to the property “inherited” from the father, mother, husband and father-in-law of the female Hindu and do not affect the property acquired by her by gift or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its operation in confined to the case of dying without leaving a son, a daughter or children of any predeceased son or daughter. 10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2) (a). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section15(2) (a). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section15(2) (a). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be — if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father.” 23. Once it is found that the case falls Under Section 15(2) (b), the fiction envisaged in Rule 3 of Section 16 is attracted, the same is reproduced as under : “16. Order of Succession and manner of distribution among heirs of a female Hindu.—The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely— Rule 3. The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.” 24. 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 intestate’s death. Bearing this fiction in mind the other relevant provisions to be considered in the matter. 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 intestate’s death. Bearing this fiction in mind the other relevant provisions to be considered in the matter. Section 8 of the Act which provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter reads as under : “Section 8 (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 agnate of the deceased; and Lastly, if there is no agnate, then upon the cognates of the deceased.” And Section 12 (1) of the Act which is as under : “12. Order of succession among agnates and cognates.—The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder. Rule 1. Of two heirs, the one who has fewer or no degrees of ascent is preferred.” So far as the word ‘agnate’ is concerned, the same is define under Section 3(1) (a) : ““agnate”- one person is said to be an “ agnate” of another if the two are related by blood or adoption wholly through males;” 25. Further, in the instant matter the pedigree is not disputed between the parties and also that the land in dispute belongs to Uma Dutt, after his death succeeded to Bhagwat and Badri. Lastly by their widow Mst. Rajdei and Mst. Dhanraji, who died issue less, so after their death property in question would devolve to nearest legal heir as per the provisions as provided under Section 15(1) (b), Section 12 (1) and Section 8 (C) of the Act. 26. Accordingly, the plaintiff/appellant being a preferential heirs/ascent/agnate is entitle to inherit/succeeded the property. In this regard, the trial Court has given a categorical finding after taking into consideration the relevant provisions of Hindu Succession Act, the plaintiff/appellant is being ascent/agnate entitled to succeed the property after the death of Mst. Rajdei and Mst. 26. Accordingly, the plaintiff/appellant being a preferential heirs/ascent/agnate is entitle to inherit/succeeded the property. In this regard, the trial Court has given a categorical finding after taking into consideration the relevant provisions of Hindu Succession Act, the plaintiff/appellant is being ascent/agnate entitled to succeed the property after the death of Mst. Rajdei and Mst. Dhanraji issue less and also taken into consideration that respondent No. 4 to 6 to the suit admitted the claim of the plaintiff/appellant in respect to property in question entered into a compromise on record as paper No. 30/ka-1. While dealing the issue No. 1, the said findings are perfectly valid in accordance with the facts and evidence on record. 27. However while reversing the judgment given by trial Court, the appellate Court has passed its judgment on the admission given by the plaintiff that Nakched son of Muneshwar, brother of Uma Dutt, has three daughters and that agricultural property belongs to Mst. Rajdei and Mst. Dhanraji, after their death divided into three parts succeeded by plaintiff and defendants so the plaintiff is not entitled for the relief as claimed by him, dismissed the suit, is an action on the part of the appellate Court, contrary to the provisions of Section 15(1) (b) and Section 8(2) of the Act. 28. As in the present case, on the basis of admitted facts as exists on record, emerged out that said admission has very well resided and explained/clarified by the plaintiff/appellant on the basis of facts that daughters of Nakched cannot have any right to claim the property in question as they had not even contested the claim and defendant No. 3 /Ram Bahore in his cross-examination had admitted that before the death of Mst. Rajdei and Mst. Rajdei and Mst. Dhanraji all the ancestor above the line of aforesaid ladies had died so the findings given by appellate Court while passing the impugned judgment that Nakched has three daughters on the basis of statement given by the plaintiff in his cross-examination, is not legal impediment in the way of plaintiff/appellant in view of the provisions as provided under Section 58 of the Evidence Act, as the said statement has been explained by him that under what circumstances it has been given thus, the said statement is not a ground to dis entitle the plaintiff to get relief as claimed by him in the said suit, hence the order passed by appellate Court is contrary to law(See: Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Bosavi, (1960) 1 SCR 773 ) 29. In addition to above said facts, even if Nakched has three daughters then in that circumstances as per the provisions as provided under Hindu Succession Act, the plaintiff/appellant Ram Lakhan son of Muneshwar, brother of Uma Dutt, has got preferential right being legal heirs of the deceased Mst. Rajdei and Mst. Dhanraji, who dies issue less in comparison to the daughters of Nakched. So the judgment given by appellate Court on the basis of a new case not pleaded by either of the parties that Nakched has three daughters intervening the line of succession parallel to the plaintiff/appellant, as such he cannot succeed or inherit the property of two deceased ladies, who died issue less coupled with the facts that the daughters of Nakched had not raised their claim, the action on the part of appellate Court thereby dismissing the suit of the plaintiff is contrary to the facts and material evidence on record, only on the basis of admission made by plaintiff that Nakched has three daughters which has very well explained by him on the basis of relevant material that he is entitled to get property of Mst. Rajdei and Mst. Dhanraji, died issue less rather plaintiff/appellant clarified the factual position in order to inherit/succeed the property by way of cogent evidence as such the judgment given by appellate Court is perverse in nature, contrary to facts on record, liable to be set aside.(See: Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and other, AIR 1999 SC 2213 and Kashmir Singh v. Harnam Singh and another, 2008 AIR SCW 2417) 30. For the foregoing reasons, the appeal is allowed. The judgment and decree dated 28.11.1988 passed by IInd Additional District Judge, Sultanpur in Civil Appeal NO. 13 of1986 (Ram Milan and others v. Ram Lakhan and others) is set aside and the judgment and decree dated 12.12.1985 passed by IInd Additional Munsif Sultanpur in Original Suit No. 2385 of 1982 (Ram Lakhan v. Ram Milan and others) is restored. 31. No orders as to costs. ————