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2018 DIGILAW 180 (ORI)

Prasad Kumar Naik (since dead) v. Parbati Naik

2018-02-12

A.K.RATH

body2018
JUDGMENT : Dr. A.K. Rath, J. This appeal is by the defendant. 2. Plaintiff-respondent instituted the suit for declaration of right, title and interest or in the alternative for partition of the suit land. The case of the plaintiff was that the suit land originally belonged to one Ghuman. He had four sons, namely, Goutam, Hari, Bansi and Ashok. In a family partition, the suit land fell to the share of Goutam. He was in possession of the same. Niladri was the wife of Goutam. Prasad, defendant, was the son of Ashok. Goutam had a daughter, namely, Dhubuni. She predeceased her parents. Parbati, plaintiff, is the daughter of Dhubuni and grand-daughter of Goutam and Niladri. Goutam died about 20 years back leaving behind him widow, Niladri, who possessed the suit land. Niladri died on 1.11.76 leaving behind the plaintiff as her only heir. The plaintiff was in possession of the suit land. The defendant managed to get his name recorded in the current settlement R.O.R. He falsely claimed to be the adopted son of Goutam. He is not the adopted son of Goutam and Niladri. With this factual scenario, she instituted the suit seeking the relief’s mentioned supra. 3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The specific case of the defendant was that the plaintiff was a stranger to the family of Goutam. Goutam and Niladri adopted the defendant in October, 1935, when he was a child. Since the date of adoption, he had been treated as the son of Goutam. He had performed the obsequies of Goutam and Niladri. It was further pleaded that Goutam executed a registered deed of acknowledgement of adoption in his favour on 21.6.1951. He disputed the dates of death of Goutam and Niladri. According to him, Goutam died on 10.1.55. Niladri died in October, 1974. After the death of Goutam and before the Hindu Succession Act came into force, he succeeded to the suit property and is in possession of the same. 4. Stemming on the pleadings of the parties, learned trial court struck ten issues. Parties led evidence, both oral and documentary, to substantiate their respective cases. Though the defendant pleaded that plaintiff was a stranger to the family of Goutam, during the stage of trial the said plea was abandoned. 4. Stemming on the pleadings of the parties, learned trial court struck ten issues. Parties led evidence, both oral and documentary, to substantiate their respective cases. Though the defendant pleaded that plaintiff was a stranger to the family of Goutam, during the stage of trial the said plea was abandoned. It was admitted that the plaintiff is the grand-daughter of Goutam being the daughter of his pre-deceased daughter-Dhubuni. Learned trial court came to hold that defendant is the adopted son of Goutam. Goutam died on 10.1.1955. The daughter had no right over the property of her father. Since Goutam died prior to coming into force of the Hindu Succession Act leaving Niladri, widow and the defendant as his adopted son, the plaintiff had no interest over the suit land. The plaintiff is not entitled to any share. Held so, it dismissed the suit. Challenging the judgment and decree of the learned trial court, the plaintiff filed appeal before the learned District Judge, Bolangir, which was transferred to the court of the learned A.D.J., Bolangir and renumbered as T.A. No.29/35 of 1991 92. Learned appellate court concurred with the finding of the learned trial court that the defendant is the adopted son of Goutam. It held that Goutam died on 10.1.55. His wife-Niladri died in October, 1974. Hindu Women’s Right to Property Act, 1937 (“Act, 1937”) came into force in Bolangir on 1.1.1948. Under Sec.3(2) of the Act, 1937, Niladri had limited interest in the property. Goutam had half interest in the property at the time of his death. Niladri would be entitled to the said half interest. She became the full owner under Sec.14(1) of the Hindu Succession Act, 1956. The limited interest of Niladri in respect of the property on the death of her husband is “property” within the meaning of Sec.14(1) of the Hindu Succession Act, 1956. The expressions “in possession” do not mean that the Hindu female should be physical possession in real or constructive possession of the property. The limited interest of Niladri in respect of the property on the death of her husband is “property” within the meaning of Sec.14(1) of the Hindu Succession Act, 1956. The expressions “in possession” do not mean that the Hindu female should be physical possession in real or constructive possession of the property. Taking a cue from the decisions of the apex Court in the case of Mangal Singh and others vs. Smt. Rattno (dead) by her legal Representatives and another, AIR 1967 SC 1786 and Jagannathan Pillai vs. Kunjithapadam Pillai and others, AIR 1987 SC 1493 , it held that there is nothing on record to show that at the time when the Hindu Succession Act came into force, the half interest which Niladri got in the suit property was not possessed by her or that she was incapable of taking over possession of the same. It further held that on the death of Nilardi in 1974, half of the suit property in respect of which she became absolute owner had devolved on the plaintiff as well as the defendant. Both will be entitled to equal share. Thus the plaintiff is entitled to 1/4th share in the suit land. Held so, it allowed the appeal in part and decreed the suit preliminary. It is apt to mention here that during pendency of the second appeal, the defendant-appellant died. The legal heirs had been substituted. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the memorandum of appeal. The same are: “2. For that the learned appellate court illegally allowed 1/4th share of the plaintiff in the suit land on a finding that plaintiff being the daughter of ‘Dhobani’ and ‘Dhobani’ being daughter of Gautam and Niladri, after death of Niladri, the plaintiff became entitled to succeed the properties left by Niladri u/s.15(1)(a) of the Hindu succession Act, 1956. Such a finding is not only illegal but also perverse because there was no pleading by the plaintiff nor evidence laid and issue framed as to whether the plaintiff is the daughter of pre-deceased daughter of Niladri. There is absolutely no evidence as to whether plaintiff’s mother Dhobani pre-deceased Niladri. 3. Such a finding is not only illegal but also perverse because there was no pleading by the plaintiff nor evidence laid and issue framed as to whether the plaintiff is the daughter of pre-deceased daughter of Niladri. There is absolutely no evidence as to whether plaintiff’s mother Dhobani pre-deceased Niladri. 3. For that in view of the admitted fact that the appellant was the adopted son of Goutam and during the life time of Niladri, the entire suit land in respect of holding no.149 of mouza-Bishumunda having been exclusively recorded in the name of appellant in the final record of right vide Ext.C and such recording having not been challenged by Niladri, the learned A.D.J. in agreement with the learned sub-Judge should have held that the appellant was the sole owner of the suit property and Niladri had no share therein and consequently plaintiff is not entitled to any relief. ” 6. Heard Mr. Sagar Ranjan Panigrahi, learned counsel on behalf of Mr. N.C. Panigrahi, learned Senior Advocate for the appellants. None appeared for the respondent. 7. Mr. Panigrahi, learned counsel for the appellants, submitted that the learned appellate court committed a manifest illegality and impropriety in allowing 1/4th share to the plaintiff in the suit land. There is neither any pleading nor any evidence that the plaintiff is the daughter of pre-deceased daughter of Niladri. Since Goutam died prior to Hindu Succession Act, 1956, the issue of succession would be governed by the Act, 1937. Under Act, 1937, daughter had no right. The defendant is the adopted son of Goutam. The suit land had been recorded in the name of the defendant in the final ROR, Ext.C. The same had not been challenged by Niladri or the plaintiff. The defendant is the absolute owner of the suit property. The plaintiff is not entitled to any share over the same. 8. Before adverting to the contentions raised by the learned counsel for the appellants, it will necessary to set out the provisions of the Act, 1937 and the Hindu Succession Act, 1956. The defendant is the absolute owner of the suit property. The plaintiff is not entitled to any share over the same. 8. Before adverting to the contentions raised by the learned counsel for the appellants, it will necessary to set out the provisions of the Act, 1937 and the Hindu Succession Act, 1956. Sec.3(2) of the Act, 1937 postulates that when a Hindu governed by any School of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Further sub-sec.(3) of Sec.3 thereof provides that any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Women’s estate, provided however, that she shall have the same right of claiming partition as a male owner. 9. Sec.14 of the Hindu Succession Act, 1956 deals with property of a female Hindu to be her absolute property. The same is quoted hereunder. “14. Pproperty of a female Hindu to be her absolute property–(1) 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. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the 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 this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 10. The apex Court in the case of V. Tulasamma & others vs. 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” 11. Goutam had half interest in the property at the time of his death on 10.1.55. As per Sec.3(2) of the Act, 1937, his widow, Niladri had in the property the same interest as Goutam had. Thus, the limited interest of Niladri blossoms in full interest after coming into operation of the Hindu Succession Act, 1956 by virtue of Sec.14(1) of the said Act. 12. In Sukh Ram and another vs. Gauri Shankar and another, AIR 1968 SC 365 , Hukam Singh and Sukhram were two brothers. Chidda was the son of Sukhram. Hukam Singh, Sukhram and Chidda constituted a Hindu joint family and were governed by the Mitakshara Law of the Benares School. Hukam Singh died in 1952 leaving him surviving his wife Kishan Devi. Kishan Devi sold a half share in a house and a shop belonging to the joint family to one Gauri Shankar. Chidda was the son of Sukhram. Hukam Singh, Sukhram and Chidda constituted a Hindu joint family and were governed by the Mitakshara Law of the Benares School. Hukam Singh died in 1952 leaving him surviving his wife Kishan Devi. Kishan Devi sold a half share in a house and a shop belonging to the joint family to one Gauri Shankar. Sukhram and his son Chidda then commenced an action the court of the Munsif of Ghaziabad for a decree declaring that the sale by Kishan Devi to Gauri Shankar was without consideration and for an order cancelling the sale deed. The suit was dismissed by the court of First Instance, the District Court, Meerut and the High Court of Allahabad. The matter went to apex the Court. The apex Court held that on the death of Hukam Singh in 1952, Kishan Devi is acquired by virtue of Sec.3(2) of the Hindu Women’s Right to Property Act, 1937, the same interest in the property of the joint family which Hukam Singh had. That interest was limited interest known as the ‘Hindu Woman’s Estate’ Sec.3(3) of the Hindu Women’s Rights to Property Act, 1937. Sec.14(1) of the Hindu Succession Act, 1956 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. Clearly therefore, on the express words of Section 14(1) of the Hindu Succession Act, Kishan Devi acquired on June 17, 1956, rights of full ownership in the interest which Hukam Singh had in the property of the family during his lifetime, and she was competent without the consent of the male members of the family to sell the property for her own purposes. It further held that the words of Sec.14 of the Hindu Succession Act are express and explicit, thereby a female Hindu possessed of property whether acquired before or after the commencement of the Act holds it as full owner and not as a limited owner. It further held that the words of Sec.14 of the Hindu Succession Act are express and explicit, thereby a female Hindu possessed of property whether acquired before or after the commencement of the Act holds it as full owner and not as a limited owner. The interest to which Kishan Devi became entitled on the death of her husband under Sec.3(2) of the Hindu Women’s Rights to Property Act, 1937, in the property of the joint family indisputably her “property” within the meaning of Sec.14 of the Act 30 of 1956 and when she became “full owner” of that property she acquired a right unlimited in point of user and duration and uninhibited in point of disposition. 13. The next question crops up for consideration that what is the meaning of “possessed by” appearing in Sec.14(1) of the Hindu Succession Act, 1956. The apex Court in the case of Mangal Singh and others (supra) held that the use of the expression “possessed by” instead of the expression “in possession of” in Sec.14(1) was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession. The expression used in Sec.14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course cover the other cases of actual or constructive possession. On the language of Sec.14(1), therefore, this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property. The same view was reiterated in Jagannathan Pillai (supra). 14. Thus the inescapable conclusion is that the plaintiff has 1/4th interest over the suit schedule property. The substantial questions of law are answered accordingly. 15. A priori, the appeal fails and is dismissed. Consequently the suit is decreed in part. There shall be no order as to costs.