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2018 DIGILAW 138 (ORI)

Panchanan Das v. Ramesh Chandra Mishra

2018-02-01

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J Defendant is the appellant in a reversing judgment. 2. Plaintiff-respondent instituted a suit for permanent injunction. Case of the plaintiff was that one Giridhari Swain was the absolute owner of the suit property. He died in the year 1945 leaving behind his widow Atulmani and two daughters, namely, Basi and Lochana. After death of Giridhari, his widow Atulmani succeeded to his properties. In the Hal settlement ROR, the name of Atulmani had been recorded. While the matter stood thus, Atulmani sold the suit land to the plaintiff by means of a registered sale deed dated 12.5.1986 for a valid consideration and thereafter delivered possession to him. The plaintiff used to pay rent. Defendants who have no semblance of right, title and interest over the suit property created disturbances in his possession. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendant filed a written statement denying the assertions made in the plaint. It was pleaded that Giridhari died in the year 1959 leaving behind his widow Atulmani and two daughters Basi and Lochana. After death of Giridhiar, Atulmani remarried to one Dhobei Mohanty and blessed with a daughter. After remarriage, she had no right over the property of Giridhari. Basi, daughter of Giridhari, sold her half interest in favour of defendant by means of a registered sale deed dated 17.5.1986 and delivered possession. He is in possession of the suit property. Taking advantage of wrong entry in the hal ROR, the plaintiff snatched away a nominal sale deed from Atulmani. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence. Learned trial court came to hold that the suit for permanent injunction simpliciter is not maintainable. In the absence of any definite finding that Atulmani became a widow in the year 1945, it cannot be said that she inherited the properties of deceased Giridhari to the exclusion of two daughters. Atulmani had not married to Dhobei Mohanty. She had right, title and interest over the suit properties along with her two daughters. The entry in the settlement ROR is correct. Both the plaintiff and the defendant are bona fide purchasers of the properties from the successors of Giridhari. They are entitled to the extent of share of the respective vendors. Held so, it dismissed the suit. She had right, title and interest over the suit properties along with her two daughters. The entry in the settlement ROR is correct. Both the plaintiff and the defendant are bona fide purchasers of the properties from the successors of Giridhari. They are entitled to the extent of share of the respective vendors. Held so, it dismissed the suit. The plaintiff filed Title Appeal No.13 of 1989 in the court of the learned Sub-Judge, Jagatsinghpur. Learned appellate court came to hold that Giridhari died prior to 1956. His widow Atulmani succeeded to his properties. After coming into operation of the Hindu Succession Act, 1956, Atulmani became the absolute owner of the suit properties. The suit for permanent injunction simpliciter is maintainable. Held so, it allowed the appeal. 5. The second appeal was admitted on the substantial questions of law. The same are - “1. For that a suit for mere injunction is not maintainable where the grant of injunction depends upon the determination of the Title. When the pleading of the parties and the evidences are sufficient that both the parties claims title to the suit land, the learned Appellate Court committed grave error of law in allowing the appeal without considering the case in proper perspective. 2. For that the learned Appellate Court committed grave error in not considering the voter list that is Ext.D and E and date of birth of Sashi Rekha, the daughter of Atulamani Bewa who gave birth to her after remarriage to Dhobei Mohanty i.e. Ext.7 and 8. The aforesaid documents are sufficient to prove that Atulamani Bewa has civil death after remarriage and has no right, title and interest to the suit land to the plaintiff.” 6. Heard Mr. Sambit Rath on behalf of Mr. Ganeswar Rath, learned Senior Advocate for the appellant and Mr. Manoj Kumar Mohanty, learned counsel for the respondent. 7. Mr. Rath, learned counsel for the appellant submitted that the suit for permanent injunction simpliciter is not maintainable since the matter involves adjudication of complicated question of title. The controversy in the suit is whether Giridhari died in the year 1945 or 1959. Both the courts below held that Giridhari is a pre-Act widow. The daughters and widow of pre-Act deceased have limited interest over the property of their father. They became the absolute owner of the property under Sec. 14(1) of the Hindu Succession Act. The controversy in the suit is whether Giridhari died in the year 1945 or 1959. Both the courts below held that Giridhari is a pre-Act widow. The daughters and widow of pre-Act deceased have limited interest over the property of their father. They became the absolute owner of the property under Sec. 14(1) of the Hindu Succession Act. Finding of the learned appellate court that Atulmani alone succeeded to the property is erroneous. He further submitted that Atulmani remarried to Dhobei Mohanty. After re-marriage, her interest over the properties has been divested. He cited the decisions in the case of Dada Bhagwan Shinde and Aba Bhagwan Shine v. Tulsabai, 2008 (110) BOMLR 156, Late Kamlabai through L.Rs. and others v. Rajesh Kalal and another, AIR 2008 MP 125 , Kedar Nath Ambasta v. Radha Shyam and others, AIR 1953 Pat. 81 and Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and others, AIR 2008 SC 2033 . 8. Mr. Mohanty, learned counsel for the respondent submitted that Atulmani is a pre-Act widow. Her daughters have no share over the property of her father prior to coming into operation of the Hindu Succession Act, 1956. After death of her husband, Atulmani had limited interest over the suit properties of her husband. The limited interest in the property became absolute under Sec. 14 of the Hindu Succession Act. The suit for permanent injunction is maintainable. He cited the decisions in the case of Corporation of Bangalore City v. M. Papaiah and another, AIR 1989 SC 1809 and Sulochana Dei v. Khali Dei and others, AIR 1987 Orissa 11. 9. Atulmani is a pre-Act widow. The question does arise as to whether Atulmani became the absolute owner of the suit properties after coming into operation of the Hindu Succession Act, 1956 ? 10. Sec.14(1) of the Hindu Succession Act deals with property of a female Hindu to be her absolute property. Sub-sec. (1) of Sec. 14 provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. 11. 10. Sec.14(1) of the Hindu Succession Act deals with property of a female Hindu to be her absolute property. Sub-sec. (1) of Sec. 14 provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. 11. The apex in the case of V. Tulasamma & others v. Sesha Reddy (dead) by L.Rs (1977) 3 SCC 99 held : “Section 14(1) and the Explanation thereto of the Hindu Succession Act, 1956 provide that any property possessed by a female Hindu, whether acquired before or after the commencement of the 1956 Act, shall be held by her as full owner thereof and not as a limited owner; and that ‘property’ includes both movable and immovable property acquired by her by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether from a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of the 1956 Act. The language is in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the Act and promote the socioeconomic ends, namely, to enlarge her limited interest to absolute ownership in consonance with the changing temper of the times sought to be achieved by such a long legislation. xxx xxx xxx” 12. The limited interest of Atulmani blossomed with full interest under Sec. 14(1) of the Hindu Succession Act, 1956. 13. In Uma Sahu v. Sabitri Sahu (SA No.139 of 2002 disposed of on 8.12.2017) the husband of the plaintiff died in the year 1976. Thereafter, she remarried. She instituted the suit for partition. The defendant resisted the claim on the ground that the plaintiff is not entitled to the share in the property of her previous husband after re-marriage. 13. In Uma Sahu v. Sabitri Sahu (SA No.139 of 2002 disposed of on 8.12.2017) the husband of the plaintiff died in the year 1976. Thereafter, she remarried. She instituted the suit for partition. The defendant resisted the claim on the ground that the plaintiff is not entitled to the share in the property of her previous husband after re-marriage. On an interpretation of Sec. 2 of the Hindu Widows’ Remarriage Act, 1856, Sec. 4 of the Hindu Succession Act and taking a cue from the decision of the apex Court in the case of Cherotte Sugathan (D) by L.Rs and others v. Cherottee Bharathi and others, AIR 2008 SC 1476, this Court held that the husband of the plaintiff died in the year 1976. Upon death of her husband, his share vested in the plaintiff and defendant. The right of the plaintiff has to be determined with reference to the time when her husband died. Such absolute vesting of property could not be subjected to divestment. The 1956 Act in terms of Sec. 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. The widow of a Hindu male takes her share absolutely and not the widow’s estate only in terms of Sec. 14. The 1956 Act had its full play on the date of her remarriage. The same view was taken in the case of Sulochana Dei v. Khali Dei and others, AIR 1987 Orissa 11. 14. In the instant case, succession opens after the death of Giridhari. Since Giridhari died prior to coming into operation of 1956 Act, his daughters had not succeeded to the interest of their father. Atulmani became the owner of the suit properties. She alienated the same in favour of the plaintiff by means of a registered sale deed. Thus the plaintiff became the absolute owner. 15. In Sridhar Mohanty v. Kamal Kumar Agrawalla, 57 (1984) CLT 417, this Court held it is equally true that merely because the question of title or possession may be required to be gone into incidentally would not make the suit for injunction simpliciter incompetent. Thus the plaintiff became the absolute owner. 15. In Sridhar Mohanty v. Kamal Kumar Agrawalla, 57 (1984) CLT 417, this Court held it is equally true that merely because the question of title or possession may be required to be gone into incidentally would not make the suit for injunction simpliciter incompetent. Therefore, in order to determine whether the suit for injunction simpliciter is maintainable or not the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him. 16. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, AIR 2008 SC 2033 , the apex court held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. 17. In the instant case, the plaintiff’s title is not in dispute or under a cloud. In view of the authoritative pronouncement of the apex Court in the case of Anathula Sudhakar (supra) and this Court in the case of Sridhar Mohanty (supra), the suit for permanent injunction simpliciter is maintainable. 18. The decisions cited by Mr. Rath are distinguishable on facts. In Dada Bhagwan Shinde (supra), it was held that Sec. 14 of the Hindu Succession Act, 1956 makes a widow, who has limited interest in the property, a full owner notwithstanding the acquisition of the said estate was prior to or subsequent to the commencement of the 1956 Act. The facts in the case of late Kamlabai (supra) and Kedar Nath Ambasta (supra) are different. The substantial questions of law are answered accordingly. 19. In the result, the appeal, devoid of any merit, is dismissed. There shall be no order as to costs.