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2015 DIGILAW 678 (ORI)

Menja Naik v. Bhima Naik

2015-12-03

D.DASH

body2015
JUDGMENT : 1. This appeal has been filed calling in question the judgment and decree passed by the learned Addl. District Judge, Rairangpur in RFA No. 14 of 2007. The appellant as the plaintiff had filed a suit for partition numbered as Title Suit No. 134 of 2000 in the court of learned Civil Judge (Sr. Divn.), Rairangpur. The trial court had preliminary decreed the suit declaring half share of the plaintiff over the suit land and holding that the respondent nos. 1 to 4 are jointly entitled to get the rest half. The trial court had directed the parties to effect the partition accordingly and on their failure, they had been given the liberty to get it effected through the process of court. The unsuccessful defendants then carried an appeal. The appeal having been allowed, preliminary decree passed by the trial court has been set aside. Therefore, the unsuccessful plaintiff has filed this appeal under Section 100 of the Code of Civil Procedure. 2. For the sake of convenience, in order to bring clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiffs case is that the parties are members of Schedule Tribe and as such are governed under Mitakshara School of Hindu Law. It is stated that one Samu Naik was the common ancestor and the land under item no.I of schedule 8' of the plaint stood recorded in his name. He died leaving behind his four sons namely, Jagai, Jatua, Ramei and Sandu. On the death of Samu, all his sons jointly succeeded and possessed the said property. In the state of jointness, Jatua and Sandu died unmarried. So, Jagai and Ramei for sometime remained joint and cultivated the properties. After sometime for the sake of convenience, they resided separately and cultivated separate parcels of landed properties. It is stated that there was never any partition in metes and bounds between them. When such was the state of affair Ramei died leaving behind his only son Samu who cultivated the land under the cultivation of his father. Thereafter, Jagai also died leaving behind the defendants as his heirs. Accordingly, they possessed the land under the possession of their father. In the current settlement operation, the lands have been jointly recorded which have been better described in item no. Thereafter, Jagai also died leaving behind the defendants as his heirs. Accordingly, they possessed the land under the possession of their father. In the current settlement operation, the lands have been jointly recorded which have been better described in item no. II of schedule 'B' of the plaint. The plaintiff is the widow of Samu and he had four daughters. The plaintiff after the death of Samu when wanted for inclusion of her name as well as the names of her daughters in place of her husband Samu, in the Hal Record of Right and for that sought for the consent of the defendants, it was refused. So, she filed suit for partition of the properties as described in item no.II of schedule 'B' of the plaint. The defendant nos. 1 to 4 admitted the genealogy and the relationship between the parties. They projected a case that the original ancestor Samu died 65 years prior to the suit leaving behind four sons who inherited the property under Sabik Khata No. 85 and jointly possessed for some years. It is not stated that after sometime four sons effected amicable partition and divided the property by metes and bounds and accordingly, they remained in separate mess and estate. Two years thereafter Jatua one of the sons of Samu reunited with his brother Jagai and then Jatua died in the year 1945 without leaving any issue. So, his widow was maintained by Jagai. It is also stated that Sandu too died issueless and had reunited with Jagai. Therefore, Jagai and his sons remained in possession of the share of Jagai as well as those of Jatua and Sandu. Jagai died in the year 1972 and after his death, the present defendants being his sons inherited and possessed the land described in the schedule 'M' of the written statement. It is next stated that the husband of the plaintiff namely, Samu died 11 years prior to the suit leaving behind the plaintiff and a completed partition had taken place in the family. It is alleged that the plaintiff being induced by her son-in-laws has filed the suit. They also made a counter claim for declaration that they are the lawful owners of the 'M' schedule properties as described in the written statement. Defendant no. It is alleged that the plaintiff being induced by her son-in-laws has filed the suit. They also made a counter claim for declaration that they are the lawful owners of the 'M' schedule properties as described in the written statement. Defendant no. 5 has filed a separate written statement in which it is stated that there being a previous partition, the suit for partition is not maintainable. 4. The trial court having framed seven issues has first answered issue no.1. Upon discussion of evidence in the light of the pleadings, it has recorded the answer that there was no partition between Ramei, Jagai and his brother. Coming to issue no. 5 as regards the partiability of the property described in item no. II of schedule 'B' as per Hal Settlement corresponding to item no. I of schedule 'B' of the Sabik settlement, finding has been rendered in the affirmative. So far as the counter claim of the defendant nos. 1 to 4 is concerned, under issue no. 4, the same has been negative Answers on the rest of the issues have accordingly followed the suite. The unsuccessful defendants filed two appeals which were numbered as RFA NO. 14 of 2007 and 15 of 2007, one against the preliminary decree passed in the suit and the other one as against the dismissal of the counter claim. The lower appellate court by the common judgment has disposed of those two appeals in finally non-suiting the plaintiff. 5. Learned counsel for the appellant submits that the view taken by the lower appellate court is wholly erroneous that a Hindu widow belonging to Scheduled Tribe cannot file a suit for partition of the coparcenery property in respect of her husband interest taking aid of the provisions of Hindu Woman's Right to Property Act, 1937 as it has been repealed by commencement of Hindu Succession Act. Therefore, he contends that when all the findings of trial court on factual aspects have been affirmed, the dismissal of the suit on above ground is liable to be set aside and the preliminary decree as passed by the trial court has to be restored. Learned counsel for the respondents supports the judgment of the lower appellate court contending that Hindu Widows under the old Hindu Law have no right to seek partition of copercenery property so far as her husbands interest therein is concerned. 6. Learned counsel for the respondents supports the judgment of the lower appellate court contending that Hindu Widows under the old Hindu Law have no right to seek partition of copercenery property so far as her husbands interest therein is concerned. 6. Perusal of the judgment of the lower appellate court reveals that the lower appellate court has affirmed all the findings of the trial court on factual aspects. It has held that there was no previous partition. This finding has been recorded upon independent analysis of evidence in the backdrop of the rival pleadings. Next finding has been rendered that the defendants have no right, title and interest over the property described in the schedule 'M' of the written statement to the exclusion of others. However, coming to the maintainability of the suit, the lower appellate court has said as under:- "The Hindu Woman's right to property Act, 1937 provided for partition by a widow in respect of limited interest otherwise known as widow's estate. But the said act was re-appealed by Hindu Succession Act, 1956. As the Hindu Woman's right to property Act, 1937 has been re-appealed, the widow of a Hindu family cannot damage a partition under the said Act. The Hindu Succession Act, 1956, is not applicable to the parties, as they belong to schedule tribe. Hence, in the present case, the Old Hindu Law is applicable to the parties and in the old Hindu Law, the widow cannot maintain a suit for partition. Hence, the present plaintiff, who is a tribal lady and the widow of Samu, cannot maintain the suit for partition. Hence, the suit for partition before the lower court is not maintainable." A bare reading of the aforesaid clearly exposes sheer ignorance on the part of the learned Addl. District Judge not only with regard to a statutory provision which he has discussed as holding the field but also the lack of rudimentary knowledge in the field of interpretation of statute as also in the matter of appreciation of the provisions contained in the relevant statutes in reading those properly with due application of mind. 7. District Judge not only with regard to a statutory provision which he has discussed as holding the field but also the lack of rudimentary knowledge in the field of interpretation of statute as also in the matter of appreciation of the provisions contained in the relevant statutes in reading those properly with due application of mind. 7. The Hindu Woman's Right to Property Act, 1937 came into force in the area of Ex-State of Mayurbhanj with effect from 01.01.1949 (as has been held by me with detail discussion as regards the history as also the object and reasons of the legislation, in case of 'Kuili Majhiani vs. Salia Majhi and Others"; 2015 (Supp.-II) OLR 229 : 2015 (I) CLR 581. The provisions of the said Act brought about the concept limited ownership of the females in respect of the interest of the males whose heirs they are, over the coparcener property and it conferred the right to claim partition thereafter. The provisions of this Act came to be applied to all those Hindus governed under the traditional Hindu Law. Hindu Succession Act, 1956 came into force on 17.6.56. The very section relating to the application of the provisions of the Act i.e. Section 2 in Sub-section 2 provides as under:- "(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs." Admittedly, in the case in hand, the parties are members of Schedule Tribe. Thus, in view of above, the provisions of Hindu Succession Act have no applicability to them in respect of intestate succession. The Act in Section 4 provides its over-riding effect which reads as under :- "4. Thus, in view of above, the provisions of Hindu Succession Act have no applicability to them in respect of intestate succession. The Act in Section 4 provides its over-riding effect which reads as under :- "4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act." The very plain and simple reading of all these provisions leaves no room for doubt that the provisions of the Hindu Woman's Right to Property Act, 1937 are over-ridden by the provisions of Hindu Succession Act, 1956 but that is certainly so far as those Hindus to whom the provisions of Hindu Succession Act, 1956 apply but not for those to whom the provisions of the Hindu Succession Act, 1956 do not at all apply. When the Act overrides an earlier Act and that very Act does not apply to members of a particular Tribe to whom that earlier Act was applicable, it is preposterous to even think for a moment that said earlier Act would stand repealed also for them who are not governed by the Act which contains an overriding provision. So for them, the provisions of Hindu Woman's Right to Property Act, 1937 can never be said to have been over-ridden and such Act still very much holds the field in so far as the members of the Scheduled Tribe within the meaning of clause-25 of Article 366 of the Constitution are concerned until and unless Central Government by notification in the Official Gazette, otherwise directs which has not yet been done. The over-riding provision will come into play for them who are governed by the provisions of the Act which contains such provisions but how can it be so read for being applied to those who are not governed by the subsequent Act so as to say that even the right conferred upon them under earlier Act has been taken away by the subsequent Act which has even no applicability for those. Therefore, I have the least hesitation to say that such a view taken by the learned Addl. District Judge that the provisions of Hindu Woman's Right to Property Act, 1937 have stood repealed by the provisions of Hindu Succession Act, 1956 also for those who are not governed by the Hindu Succession Act, 1956 is wholly erroneous. The provisions of Hindu Succession Act, 1956 do not apply to the Scheduled Tribe. It has to be borne in mind that Hindu Succession Act, 1956 has not at all taken away the right conferred upon the Hindu Widows by virtue of Hindu Women's Right to Property Act, 1937 but it has rather enlarged the rights in making the limited right as absolute with the right to seek partition giving a complete good bye to the concept of limited right introduced by Hindu Women's Right to Property Act, 1937. The Hindu widows belonging to Schedule Tribe are no doubt governed by old Hindu Law but with the provisions of Hindu Women's Right to property Act, 1937 fully remains in force for them so as to be enjoyed with all the rights conferred there under. Thus those widows cannot maintain a suit for partition as has been held by the learned Additional District Judge is palpably wrong and cannot be allowed to stand for a fraction of a second as it has the devastating consequences. The learned Addl. Thus those widows cannot maintain a suit for partition as has been held by the learned Additional District Judge is palpably wrong and cannot be allowed to stand for a fraction of a second as it has the devastating consequences. The learned Addl. District Judge having taken such a view rather has gone to hold that though the widow members of Scheduled Tribe were governed by the provisions of Hindu Woman's Right to Property Act, 1937 yet after commencement of the provisions of Hindu Succession Act, 1956 they no more enjoy the rights conferred under the Hindu Woman's Right to property Act, 1937 and when Hindu widows who are governed by Hindu Succession Act, 1956 were enlarged with their rights, yet those Hindu widows belonging to Scheduled Tribes were stripped of even their right conferred upon them by Hindu Women's Right to Property Act, 1937. Thus, by coming to such a faulty conclusion, the learned Addl. District Judge has rather gone to hold that the rights conferred upon Hindu widows by virtue of the provisions of Hindu Woman's Right to Property Act, 1937 have stood abrogated for the widows who are Scheduled Tribe and thus they have been divested. It's true that under the old Hindu Law partition of the coparcenery property at the instance of a Hindu widow was not maintainable and they were having the right to claim maintenance with further right to have charge over the interest of their husband over said coparcenery property for realization of maintenance dues. So more importantly as the first progressive legislation to remove gender bias to some extent as the mark of beginning, in order to confer that right to claim partition upon the widow with the concept of limited right/ownership for them, there was introduction of the provisions of Hindu Woman's Right to Property Act, 1937. Really, I am afraid to think that as to how it came to appeal the judicial mind of the learned Addl. Really, I am afraid to think that as to how it came to appeal the judicial mind of the learned Addl. District Judge that when limited ownership matured to absolute so far as the Hindu widows are concerned who are governed by the provisions of Hindu Succession Act, 1956, as to how by virtue of commencement of that very Hindu Succession Act, 1956 such right to claim partition and limited ownership of Hindu widows belonging to Scheduled Tribe to whom the provisions of Hindu Succession Act 1956 even do not apply would stand taken way and they would again be deprived of the right to Claim partition conferred upon them by Hindu Woman's Right to Property Act, 1937 and thus divested for all times to come. The learned Addl. District Judge by arriving at such decision has made it clear that he has conducted the game without being aware of the basic rules of the said game and for that reason the result has been the grave illegality in declaring the final result. 8. The aforesaid discussion and reasons record necessary answer to the substantial question of law as stated in the foregoing para which ultimately runs in favour of the plaintiff-appellant and against the defendants-respondents. Therefore, this Court expressing above concern is constrained to set aside the finding of the lower appellate court on the above score in holding that the finding that the suit at the instance of the plaintiff-appellant not maintainable which is vulnerable. In consequence thereof, the judgment and decree passed by the lower appellate court are hereby set aside and those passed by the trial court are restored to hold the field. 9. In the result, the appeal stands allowed with cost throughout. The Registry is directed to communicate copy of this judgment to the concerned Judicial Officer for favour of information. Appeal allowed with costs.