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2015 DIGILAW 44 (MAN)

Khundrakpam (Ningol) Arambam Ongbi Suniti Devi and Ors. v. Khundrakpam (Ningol) Indrani Devi and Ors.

2015-03-18

LAXMI KANTA MOHAPATRA

body2015
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. This appeal arises out of judgement and order dt. 16.7.2011 passed by the learned Addl. District Judge (FTC), Manipur East in Original(Succession) No. 9/2010/1/2011. The respondents in the Original (Succession) Suit are the appellants in this appeal. 2. The present respondent No. 1 had filed the application for grant of Succession Certificate u/s. 372 of the Indian Succession Act, 1925 in relation to a claim of Rs. 10 lakh in form of death-cum-gratuity which late Dr. Kh. Gambhini Devi, Ex Professor, Department of Adult Education, Manipur University had left. It is necessary to refer to the family genealogy for convenience and accordingly family genealogy is reproduced below: From the Genealogy, it appears that late Kh. Amuba Singh had three wives, namely Smt. Nupimacha Devi, Smt. Tonsija Devi and Smt. Tombi Devi. The deceased, Dr. Kh. Gambhini Devi is the daughter of late Kh. Amuba Singh from his first wife, Smt. Nupimacha Devi. Late Kh. Gambhini Devi was unmarried and died intestate on 1.9.2008 while working as Professor in the Department of Adult Education, Manipur University. Her death cum-retirement gratuity of Rs. 10 lakh was not disbursed by the Manipur University. According to the present respondent No. 1, she and Shri Kh. Sudhendra (respondent No. 5 before the trial court) are the class-II heirs of Dr. Kh. Gambhini Devi, Smt. Kh. (O) Medha Devi and Kumari Kh. Australia Devi and Kumari Kh. Lendi Devi (respondents- 7, 8 and 9 before the trial court) are class-IV heirs and rest of the respondents before the trial court were class-III heirs. Her further case is that late Dr. Gambhini Devi suffered from prolonged Cancer and had borrowed huge amount of money for her treatment. After her death, the present respondent No. 1 performed her 'Sradha' ceremony and managed to pay back the loan incurred by her for her treatment. Accordingly, she filed the claim for grant of Succession Certificate on the ground that she being the class-II heir of late Dr. Kh. Gambhini Devi and respondent No. 5 before the trial court having abandoned his claim, she is only entitled to get the Succession Certificate and rest of the respondents are not entitled. 3. The contesting respondents before the trial court, who are appellants in this appeal denied the claim of the present respondent No. 1 and submitted that late Kh. Kh. Gambhini Devi and respondent No. 5 before the trial court having abandoned his claim, she is only entitled to get the Succession Certificate and rest of the respondents are not entitled. 3. The contesting respondents before the trial court, who are appellants in this appeal denied the claim of the present respondent No. 1 and submitted that late Kh. Amuba Singh was the common ancestor and therefore not only the present respondent but also the appellants are entitled to the issue of Succession Certificate in their favour and in order to receive the death cum-gratuity amount lying in the Manipur University of late Dr. Kh. Gambhini Devi and all of them are equally entitled to the said amount. 4. The learned Addl. District Judge (FTC) framed three issues such as- "A -whether Smt. Khundrakpam Ningol Ibemcha Devi (Respondent No. 13 before trial court) is the adopted daughter of the deceased, Dr. Kh. Gambhini Devi? B -Whether Dr. Kh. Gambhini Devi died on 1.9.2008 leaving behind a sum of Rs. 10 lakh as her death-cum-retirement gratuity ? C -Whether present respondent No. 1 is entitled to the relief claimed?" On assessment of evidence, the learned Addl. District Judge, (FTC) found that the respondent No. 13 before the trial court had failed to prove that she is the adopted daughter of late Kh. Gambhini Devi and that late Dr. Kh. Gambhini Devi died on 1.9.2008 while in service and her heirs were entitled to the death-cum-retirement gratuity amount. So far the issue No. 3 is concerned, referring to Section 18 of the Hindu Succession Act, the learned Addl. District Judge (FTC) came to the conclusion that the present respondent No. 1 is related to late Dr. Kh. Gambhini Devi by full blood whereas others except respondent No. 5 before trial court, were related by half blood. Therefore, the present respondent No. 1, who is related to late Kh. Gambhini Devi by full blood, has preference over other relatives who are related to her half blood and accordingly granted Succession Certificate in favour of the present respondent No. 1, as respondent No. 5 before the trial court, who is also related by full blood, abandoned his claim. 5. Challenging the said impugned order of the learned Addl. District Judge (FTC), Mr. 5. Challenging the said impugned order of the learned Addl. District Judge (FTC), Mr. N. Mahendra, learned counsel appearing for the appellants submitted that in the facts and circumstances of the case, Section 18 of the Hindu Succession Act has no application and case is governed by Sections- 15 and 16 of the Act. According to the learned counsel for the appellants, section 15 lays down the Rules of Succession in the case of female Hindu dying intestate and as per the said provision the property of the female Hindu dying intestate shall devolve according to the rules set out in Section 16, firstly upon the sons and daughters including the children of pre-deceased son or daughter and husband, secondly upon heirs of the husband and thirdly upon the mother and father. There are two other categories and in the order of Succession the heirs of the father comes at the fourth place. With reference to the fact that late Kh. Gambhini Devi was unmarried and died intestate, it was contended by the learned counsel for the appellants that as per Section 15 death-cum-gratuity payable to the legal heirs of late Dr. Gambhini Devi passed on to the heirs of her father as prescribed in Section 15(1)(d). Admittedly, the father of late Dr. Gambhini predeceased her. Therefore, according to the learned counsel for the appellant, under Rule 3 of Section 16 it will be presumed that on the date on which late Dr. Kh. Gambhini Devi died, her father was alive and died intestate. Therefore, all the children of late Kh. Amuba Singh are entitled to succeed to the property left by late Dr. Kh. Gambhini Devi. 6. Shri Th. Tolpishak, learned counsel for the respondent No. 1 submitted that by the time late Dr. Gambhini Devi died her father had predeceased her. Therefore, in terms of Section 15(1)(d) the property left by late Dr. Gambhini Devi passed on to the heirs of her father. Admittedly, the respondent No. 1 is the daughter of the common ancestor from his first wife and was related to late Dr. Gambhini Devi by full blood whereas other respondents, except respondent No. 5 before the trial court, were the children of either second or third wife of the common ancestor and they were related to late Dr. Gambhini Devi by half blood. Gambhini Devi by full blood whereas other respondents, except respondent No. 5 before the trial court, were the children of either second or third wife of the common ancestor and they were related to late Dr. Gambhini Devi by half blood. According to the learned counsel for the respondent No. 1, under section 18 of the Hindu Succession Act, heirs related to an intestate by full blood shall be preferred to heir by half blood, if the nature of relationship is the same in every respect. Therefore, according to the learned counsel for the respondent No. 1, the trial court was justified in granting the Succession Certificate in favour of the respondent No. 1 alone, the only other full blood relative who was respondent No. 5 before the trial court having abandoned his claim. For convenience Sections 15, 16 and 18 are quoted below: "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 daughters (including the children of any pre-deceased 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. 16. Order of Succession and manner of distribution among heirs of a female Hindu. 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.1- Among the heirs specified in sub-section(1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Rule-2 - If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule. 3 - The devolution of the property of the intestate on the heirs referred to in clause(b),(d) and (e) of sub-section(1) and 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." 18. Full blood preferred to half blood.- Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect." 7. On analysis of the provisions quoted above with reference to the argument advanced by the learned counsel appearing for both the parties, I find that in the present case late Dr. Kh. Gambhini Devi was not only unmarried but also did not inherit any property from her father or mother. Therefore, Section 15(2)has no application to the facts of the present case. Under Sub-section (1) to Section 15 of the Act, devolution of property in the present scenario shall be upon the heirs of her father which is provided in Section 15(1)(d). Section 15(1)(a) and (b) have no application since late Dr. Gambhini Devi was unmarried. Section 15(1)(c) has also no application as the mother and father of late Dr. Kh. Gambhini Devi had predeceased her. Therefore, on her death the property left by her has to devolve upon the heirs of her father. Section 15(1)(a) and (b) have no application since late Dr. Gambhini Devi was unmarried. Section 15(1)(c) has also no application as the mother and father of late Dr. Kh. Gambhini Devi had predeceased her. Therefore, on her death the property left by her has to devolve upon the heirs of her father. This provision has to be read again with Section 16 Rule 3 of the Act. It is provided in the said Rule that devolution of property of the intestate on the heirs referred to in Clause (b)(d) and (c) of Sub-section (1) and 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 intestate's death. Since late Dr. Kh. Gambhini Devi was unmarried and her father had pre-deceased her, according Rule 3 of Section 16 the devolution of the property of late Dr. Kh. Gambhini Devi on the heirs shall be in the same order as provided in Section 15 and according the same Rules as would have applied if the property had been the father's property and such person, i.e. the father had died intestate in respect thereof immediately after the intestate's death. I am of the view that in terms of the said Rules 3 of Section 16, on the death of late Dr. Kh. Gambhini Devi the property left by her devolved upon her deceased father and it will be taken as if her father died intestate in respect of the said property immediately after Dr. Kh. Gambhini Devi's death. This view is supported by decision of the Division Bench of the Andhra Pradesh High Court in the case of Pinkana Pasamma alias Janikamma & Ors v. Bhimdas and Ors.: ILR (1977)AP 418. 8. Once the above interpretation is given to Section 15(1)(d) read with Section 16 Rule 3, the effect will be that on the death of late Dr. Kh. Gambhini Devi, the property left by her would devolve upon her father as if he had died intestate in respect of the said property immediately after death of late Dr. Kh. Gambhini Devi and consequently under Section 15(1)(d) the sons and daughters of late father of late Dr. Kh. Gambhini Devi, the property left by her would devolve upon her father as if he had died intestate in respect of the said property immediately after death of late Dr. Kh. Gambhini Devi and consequently under Section 15(1)(d) the sons and daughters of late father of late Dr. Gambhini Devi could succeed to the property. Even then Section 18 of the Act shall have application. It is provided u/s. 18 that heirs related to an intestate by full blood shall be preferred by heirs by half blood if the nature of relationship is same in every other respect. Section 3(1)(c) defines the terms "full blood", "half blood" and "uterine blood". It is provided that two persons are said to be related to each other by full blood when they have descended from a common ancestor by same wife, and by half blood when they have descended from a common ancestor but by different wives. In the present case, the respondent is undisputedly the daughter of late Kh. Amuba Singh through his first wife. The only other surviving heir of late Kh. Amuba Singh through his first wife was respondent No. 5 in the trial court who had abandoned his claim over the property left by late Dr. Kh. Gambhini Devi. Therefore, the respondent No. 1 comes within the definition of "full blood" whereas the appellants come within the definition of "half blood". Therefore, u/s. 18 of the Act the respondent No. 1 who is related to the intestate by "full blood" has to get the preference over the heirs who are related to the intestate by half blood. Accordingly, the respondent No. 5 in the trial court having abandoned his claim, the only person left to succeed to the property left by late Dr. Kh. Gambhini Devi is the respondent No. 1 being related to the intestate late Dr. Kh. Gambhini Devi by full blood. 9. For the reasons stated above, I find no justification to interfere with the impugned order in which it has been held that the respondent, Smt. Kh. Indrani Devi, is the person best entitled to receive the succession certificate. Accordingly, the appeal has no merit and is dismissed.