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2017 DIGILAW 707 (ORI)

Arjun Padhan v. Gouri Dei @ Pradhan

2017-07-11

S.K.MISHRA

body2017
ORDER 11.7.2017 Heard learned counsel for the petitioners, learned counsel appearing for opposite parties 4 to 6 and learned Addl. Government Advocate for the State. None appears for opposite party nos. 2 and 3. 2. In this writ application, the petitioners, being the petitioners in R.P. Case No. 979/1991 of the Court of Commissioner Land Records and Settlement, Odisha, Cuttack, opposite party no. 1, have assailed the judgment dated 09.10.1992 in R.P. Case No. 979/1991 which was later on modified by the same Commissioner on 20.10.1993 in Misc. Case No. 306/1993. 3. The facts of the case are not disputed. The land in question measuring total area of 9 acres has been recorded in the Hal Khata No. 1 of Mouza-Kanjiapal. The Record of Right has been finally published in the name of the petitioners and opposite parties 2 to 6. The admitted case of the parties is that the lands in question are the ancestral properties of the parties though there is some dispute regarding status of opposite party No. 3 Kandhei Dei @ Padhan and Gouri Dei @ Padhan-opposite party No. 2. Both are daughters of Suka Padhan. It is claimed by the petitioners that Suka Padhan is no way related to Bagha Padhan. So Kandhei Dei @ Padhan and Gouri Dei @ Padhan are not entitled to get any property which was recorded in the name of Bagha Padhan. It is borne out from the record that in the year 1928 the Record of Right has been prepared in the name of Bagha Padhan, Caste-Matia (Schedule Tribe) the lands situated in Mouza Kanjiapal. 4. During current settlement in the year 1991 the Hal R.O.R. was published in the said village and Khata No. 1 has been recorded in favor of the writ petitioners and opposite party nos. 2 to 6. It is the case of the petitioners that opposite party nos. 2 and 3 are not descendants of Bagha Padhan. These two opposite parties have not appeared despite sufficient notice. Opposite party nos. 4 to 6 are married daughters of late Madhu Padhan. The petitioners have filed an application before the Commissioner Land Records and Settlement, Orissa, Cuttack for deletion of names of opposite party nos. 2 and 3 are not descendants of Bagha Padhan. These two opposite parties have not appeared despite sufficient notice. Opposite party nos. 4 to 6 are married daughters of late Madhu Padhan. The petitioners have filed an application before the Commissioner Land Records and Settlement, Orissa, Cuttack for deletion of names of opposite party nos. 2 to 6 which was registered as R.P. Case No. 979/1991 Learned Commissioner dismissed the application holding that the opposite parties though tribals are Hindus and as per the judgment of this Court in Second Appeal No. 2002/1979, Hindu Succession Act, 1956 is applicable to the tribals. Hence the daughters of Madhu Padhan are entitled to record their names with respect to the properties of Bagha Padhan. At the outset learned counsel for the petitioners drew attention of this Court to sub-Section (2) of Section 2 of Hindu Succession Act, 1956. It is appropriate to take note of the same. “2. Application of Act (1) xx xx xx (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 Central Government, by notification in the official Gazette, otherwise directs. (3) xxx xxx xxx xxx.” 5. It is not the case of any of the parties that the Central Government has brought out any notification including the tribe of the present parties to which the Hindu Succession Act, 1956 (Act 30/1956) applies. It is also appropriate to take note of the judgment of this Court in the case of Dhanurjaya Kirsani Vrs. Sukra Kirsani and others; 62 (1986) C.L.T. 123; wherein this Court recognized the fact that the statutory Hindu Law, i.e. Hindu Succession Act, 1956 is not applicable to the tribals. However, it is further observed that unless any custom to the contrary is proved, the original text of Hindu Law also applies to the tribal people living in the interior parts of the country whose way of life, their habits and culture have been influenced by the Aryans and their missionaries through centuries and who in a sense have embraced and profess Hinduism. This is the same judgment in the Second Appeal which has been relied upon by the learned Commissioner. This is the same judgment in the Second Appeal which has been relied upon by the learned Commissioner. At page 10 in the last paragraph the learned Commissioner has come to the conclusion that the Hindu Session Act, 1956 is applicable to the daughters of Madhu. A plain reading of the judgment and the impugned order reveals that the learned Commissioner misguided the ratio of the case and committed an error in his judgment which is apparent from the face of record. Further, in the case of Dasarath Naik V. Gura Bewa and others; AIR 1972 Orissa 78(80), this Court has held that Hindu Succession Act, 1956 does not apply to the Scheduled Tribes and in that case it was decided that plaintiff no. 1, i.e. the widow of the propitious and plaintiff no. 3, the daughter of the persons were not entitled to any share. Similar view has been taken by the Hon’ble Supreme Court in the case of Dr. Surjamani Stella Kujur V Durga Charan Hansdah; AIR 2001 SC 938 . 6. So the Banaras School of Mitakshara will be applicable to the parties. As per Article 34, clause (iii) of the Mulla’s Hindu Law if the deceased was separate, at the time of his death from his coparceners, the whole of his property, however acquired, will pass to his heirs by succession according to the order given in Article 43. Article 43 provides for order of succession among sapindas. Legal heirs mentioned in 1-3 are son, grandson (son’s son) and great-grandson (son’s son’s son), and (after 14th April 1937) widow, predeceased son’s widow, and predeceased son’s predeceased son’s widow. However, it is the case that all the widows of the predecessor in interest of all concerned persons, under whom the opposite parties 2 to 6, have claimed title, have predeceased their respective husbands. Hence none of women have succeeded to the property of late Bagha Padhan. However, it is the case of the opposite parties 4 to 6 that they succeeded to the share of their mother. It is submitted by the learned counsel for the petitioners that the widows of Madhu Padhan died in the year 1934. Widow of Budhi died in the year 1935 and Suka is not the son of Bagha Pdhan. However, it is the case of the opposite parties 4 to 6 that they succeeded to the share of their mother. It is submitted by the learned counsel for the petitioners that the widows of Madhu Padhan died in the year 1934. Widow of Budhi died in the year 1935 and Suka is not the son of Bagha Pdhan. So as per the Banaras School of Mitakshara only Arjun and Duryodhan succeeded to the property and after that their legal heirs succeeded to the property. 7. In that view of the matter, this Court comes to the conclusion that the order passed by opposite party n.1 is erroneous and the opposite parties 2 to 6 are not entitled to any share of the property of Bagha Padhan. Had there been a partition between the sons of Bagha Padhan and if they could establish that their predecessors were allotted a share and they would succeed to the same. However, it is neither the case of the petitioners nor the case of the opposite parties 2 to 6 that there has been a partition between the sons of late Bagha Padhan. 8. In view of the aforesaid consideration, this Court finds that the order passed by opposite party no. 1 is illegal and needs to be quashed. Accordingly, the judgment dated 09.10.1992 in R.P. Case No. 979/1991 which was later on modified by the same Commissioner on 20.10.1993 in Misc. Case No. 306/1993 is quashed. The lands in question be recorded in the name of the petitioners and/or their legal hairs. The concerned Tahasildar is directed to carry out this order. 9. At this stage, it is submitted by opp.party nos. 4 to 6 that there may be some dispute regarding the date of death of the parties and if they file a suit in civil Court, the order passed by this Court may be considered to have foreclosed the ;question. However, this Court observed that if any such suit is filed by any of the parties, the civil Court shall take evidence and come to his own conclusion without being influenced by the order of this Court. This order has been passed for the purpose of preparing R.O.R. in the name of the present petitioners. There shall be no order as to costs. 10. The O.J.C. is accordingly disposed of. 11. This order has been passed for the purpose of preparing R.O.R. in the name of the present petitioners. There shall be no order as to costs. 10. The O.J.C. is accordingly disposed of. 11. Urgent certified copy of this order be granted on proper application. Petition disposed of.