Chandradhar Singh v. Kamla Rai & Ors.

between the parties that the plaintiffs and defendant no. 4 are the descendants of a common ancestor Kanhaiya Pd. Rai. The said Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 2 Kanhaiya Pd. Rai had three sons namely Bishwanath Rai, Bechan Rai and Lalan Rai. The plaintiffs Kamla Rai and Daroga Rai are the sons of Bishwanath Rai whereas the defendant no. 4 Satendra Kumar Singh (now deceased) was one of the sons of the plaintiff no. 2 Daroga Rai. This defendant no. 4 Satendra Kumar Singh had executed the sale deeds which are under assail in the suit, in favour of the defendant nos. 1, 2, and 3 who are the appellants in this appeal.

4. The fact has not been disputed that there had earlier been partition in the family by compromise decree passed in T.S. No. 136 of 1970 (Ext. 3) whereby Bishwanath Rai was allotted separate share and the plaintiff no. 1 Kamala Rai and plaintiff no. 2 Daroga Rai were also allotted separate properties in their share. The properties allotted in the share of Bishwanath Rai has been mentioned in the schedule ‘ka’ of the plaint and the properties mentioned in schedule ‘kha’ of the plaint are the portions of the properties mentioned in schedule ‘kha’. This schedule ‘kha’ properties have been transferred by the defendant no. 4 Satendra Kumar Singh in favour of the defendant nos. 1, 2 and 3 by the sale deeds in question. The fact of death of Bishwanath Rai in the year 1995 is also an admitted fact.

5. The demonstrable facet of discord between the Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 3 parties however inheritance over the properties of Bishwanath Rai after his death inasmuch as the plaintiffs claim that they being the two sons of deceased Bishwanath Rai have exclusively inherited the properties left behind by him whereas the contesting defendants have asserted that the defendant no. 4 being grand son of deceased Bishwanath Rai had also acquired right, title and interest in the properties left behind by him by inheritance being one of his heirs.

6. Both the courts below have concurrently held that after the death of Bishwanath Rai, the plaintiffs being his sons have exclusive right of inheritance and the defendant no. 4 being his grand son had no right of inheritance. It has thus been held that the defendant no. 4 had no right to execute the sale deeds in question with regard to the properties mentioned in schedule ‘kha’ in favour of the contesting defendants who have not acquired any right, title and interest on the lands purchased by them on the basis of sale deeds. The suit was therefore decreed and the appeal thereafter has been dismissed.

7. Mr. Choubey, the learned counsel for the appellants has strenuously submitted that the property in schedule ‘ka’ of the plaint which was allotted in the share of Bishwanath Rai would take character of ancestral property in the hands of his sons Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 4 (plaintiffs) and therefore the defendant no. 4 being one of the sons of the plaintiff no. 2 had acquired interest in the same by birth. It has been urged that the principle of Hindu law is well established that the moment a son is born, he acquires an interest in the father’s property and this right is there irrespective of the fact that the father had inherited the property from his own father. It has therefore been submitted that the defendant no. 4 had the share in the property of Bishwanath Rai even after it came in the hands of his father after death of Bishwanath Rai and therefore the sale deeds executed by the defendant no. 4 for the properties of Bishwanath Rai cannot be held to be illegal and void on the ground that the defendant no. 4 had no right, title or interest in the sold property. Criticizing the impugned judgments, the learned counsel has canvassed that both the courts below have wrongly interpreted the principle of Hindu law and the provisions of Hindu Succession Act and the impugned judgments are therefore vitiated. The learned counsel has also placed reliance in support of his stand upon the judgments of the Apex Court in the case of Smt. Dipo Vs. Wassan Singh, AIR. 1983 SC 846; Smt. Raj Rani Vs. The Chief Settlement Commissioner, Delhi, AIR 1984 SC 1234 and the State of Maharashtra Vs. Narayan Rao Sham Rao Deshmukh, AIR. 1985 SC 716. Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 5

8. It is pellucid from the impugned judgments and the submissions of the learned counsel for the appellants that the dispute between the plaintiffs and the defendants centers around the question whether the defendant no. 4 being grand son of Bishwanath Rai would have acquired an interest in the property allotted in the share of Bishwanath Rai in partition, in presence of the two sons (plaintiffs) of Bishwanath Rai. It is not in dispute that there had been earlier partition in the family by compromise decree passed in T.S. No. 136 of 1970 (Ext. 3). By this compromise decree Bishwanath Rai was allotted separate properties and his two sons Kamala Rai and Daroga Rai have also been allotted separate properties each, as mentioned in the schedules of the compromise decree. From the perusal of this compromise decree (Ext. 3) it has been found by the courts below that this partition was affected between Bishwanath Rai, his brothers and his two sons. Bishwanath Rai died in the year 1985 and after his death the inheritance of his property would be governed by S. 8 of the Hindu Succession Act which reads as follows:-

8. General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according provisions of this Chapter:- Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 6 (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; (d) lastly, if there is no agnate, then upon the cognates of the deceased.

9. The aforesaid provision directly came up for consideration by the Apex Court in the case of Commissioner of Wealth-Tax Vs. Chander Sen AIR. 1986 S.C. 1753. Their Lordships, after taking into notice the various provisions of the Hindu Succession Act, the principles of Hindu Law and judgments of different High Courts, have laid down as follows:- “………..In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property the situation contemplated by S.8 he takes it as karta of his own undivided family. The Gujarat High Court’s view noted above, if accepted, would Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 7 mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under S.8 to inherit, the latter would by applying the old Hindu law to get a right by birth of the said property contrary to the scheme outlined in S.8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by S. 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold the property which devolved on a Hindu under S.8 of the Hindu Succession Act would be HUF property in his hand vis-à-vis his own son; that would amount to creating two classes among the heir mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under S.8 of the Act include widow, mother, daughter of predeceased son etc…….”

10. The aforesaid principle has been reiterated by the Apex Court in the later decisions in Yudhishter Vs. Ashok Kumar, 1987 (SCR) 516; Commissioner of Income Tax Vs. Karuppan Chettiar 1993 SCC supp (1) 580 and Additional Commissioner of Income Tax Vs. M. Karthikeyan 1994 SCC Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 8 supp (2) 112. It is also evincible from the aforesaid decisions of the Apex Court that the view, that the son inheriting the self acquired or separate property of his father takes it as joint family property of himself and his son and not as his separate property, has been expressly repelled. Thus irresistible conclusion in the facts of this case would be that the property of Bishwanath Rai inherited by the plaintiffs as his sons would not partake the nature of joint family property of the plaintiffs and their sons. The defendant no. 4 being son of the plaintiff no. 2 thus did not acquire any right title or interest in the property (mentioned in schedule ka of the plaint) of Bishwanath Rai and the same is the exclusive separate property of the plaintiffs. Both the courts below have rightly interpreted the principles of Hindu law and have reached to the correct conclusion in the facts of the case.

11. In the decisions by the Apex Court in the case of Smt. Depo (supra), Raj Rani (supra) and State of Maharashtra Vs. Narayan Rao (supra), relied upon by the learned counsel for the appellants, the question emanating at present regarding the effect of S.8 of the Hindu Succession Act on the law of inheritance, did not fall directly for consideration and these decisions have been rendered in entirely different settings of facts. The principles laid down in these decisions are not attracted to the Patna High Court SA No.383 of 2011 (5) dt.18-07-2013 9 present fact situation.

12. In the ultimate eventuate, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly dismissed. Devendra/- (V. Nath, J)