Civil Suit No. 219 of 2009 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA NO.301 OF 2014 (From the judgment dated 07.05.2014 passed by the Addl. District Judge, Sundargarh in RFA No.11/14 of 2012-14 varying the judgment dated 18.02.2012 and decree dated 28.02.2012 passed by the Civil Judge (Senior Division), Sundargarh in C.S. No.219 of 2009 ) AFR Arnapurna Pradhan …… Appellant -versus- Trinath Barik & Ors. …… Respondents Advocates appeared in the case through hybrid mode: For Appellant : Mr. C.A. Rao, Sr. Advocate with M/s. A.K. Nanda, G.N. Sahu and T.P. Tripathy Advocates For Respondents : Mr. P.K. Rath, Sr. Advocate with M/s S.K. Mohapatra, R.N. Parija, A.K. Rout, S.K. Patnaik, P.K. Sahoo and A.Behera, Advocates __________________________________________________________ JUSTICE SASHIKANTA MISHRA CORAM: JUDGMENT 27.09.2024 Sashikanta Mishra, J. This is an appeal by the plaintiff against a reversing judgment passed by the learned Addl. District Judge, Sundargarh in RFA No. 11/14 of 2012-14 on Page 1 of 30 07.05.2014 followed by decree, whereby the judgment dated 18.02.2012 followed by decree passed by the learned Civil Judge (Sr. Division), Sundargarh in Civil Suit No. 219 of 2009 was partly set aside. 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3. The following genealogy shows the relationship between the parties. Geneology Laxman Barik = Jambubati (W) Ghasia Barik Prahallad = Sumitra (W) Kiabati (Daughter) Trinath = Narayan (Defendant No.2) (Grand-son) (Defendant No.1) Rameswar (Remarriage) Pradyumna (son)(Defendant No.3) Arnapurna (Plaintiff) 4. Suit Land The suit land pertains to land measuring Ac.5.57 dec. under Khata No.65 and land measuring Ac.0.11 dec. under Khata No.67 in village Girisuan. Page 2 of 30 5.
Facts
Plaintiff’s case: The suit land under khata no.65 was recorded in the name of the mother of the plaintiff Sumitra Barik and her grand-mother Jambubati Barik in the Hal Settlement operation. Land under khata no.67 stands recorded in the name of her mother Sumitra Barik alone. Laxman died leaving behind his son-Prahallad, daughter-Kiabati and widow-Jambubati. Kiabati died leaving behind her husband-Narayan (defendant no.2) and son-Pradumna (defendant no.3). Prahallad died leaving behind his widow- Sumitra and mother-Jambubati. Prahallad and Sumitra had no issue. After the death of Prahallad, Sumitra married another person named Rameswar. The plaintiff, namely, Annapurna was begotten out of such remarriage. It is claimed that after the death of Sumitra, the plaintiff, being her only legal heir, succeeded to the properties of her mother. The defendant no.1 filed mutation cases before Tahasildar, Hemgir being Misc. Cases No. 387 of 2004 and No.388 of 2004 for mutation of the suit properties in his name on the ground that he is the adopted son of Sumitra. The Tahasildar allowed the mutation applications in favour Page 3 of 30 of defendant no.1, but without the knowledge of the plaintiff. After coming to know of the above, the plaintiff filed appeal being M.A. No.5 of 2006 before the Sub- Collector, Sundargarh, which came to be dismissed on the ground that Sumitra having remarried, the plaintiff would have no right, title and interest over the properties belonging to the family. The plaintiff, however, claims to be possessing the suit properties. After dismissal of the appeal thus, the plaintiff filed the suit for a declaration that she is the only legal heir and successor of Sumitra Barik, as also a declaration that defendant no.1 is not the adopted son of Sumitra and not entitled to succeed to her properties. 6. Defendant No.1’s case: The defendant no.1 in his written statement admitted the basic facts averred in the plaint relating to the relationship between the parties. In addition, he claimed that being the nephew of Sumitra, as he was adopted by her on 22.05.1979 in the presence of relatives and villagers, which fact was acknowledged on a plain paper adoption deed, he possessed the properties of Prahallad Page 4 of 30 and looked after his adoptive mother Sumitra. Subsequently, Sumitra left the village voluntarily and married Rameswar Das and gave birth to the plaintiff. Further, Sumitra abandoned all her properties in the suit village and cut off all relationship with her first husband‟s family and resided in the house of Rameswar till his death. Being the adopted son of Sumitra, defendant no.1 succeeded to her landed properties and after her death he got the same mutated in his favour, as per orders passed in the mutation cases filed by him before the Tahasildar, Hemgir. The plaintiff‟s appeal against the orders of the Tahasildar was dismissed. Since the properties under khata no.65 are the ancestral properties of all the defendants and Sumitra had remarried, she is not entitled to the same. Moreover, the plaintiff being the daughter of Rameswar also has no right, title and interest over the landed properties. Despite not having any right or title over the suit land, the plaintiff has sold away lands measuring Ac.4.11 dec. from khata no.65 to one Basanta Kumar Naik by a registered sale deed no.93 of 2006. Said Basanta Kumar Naik has, however, not taken possession of Page 5 of 30 the land and it continues to be possessed by defendant no.1. Defendant nos.2 and 3 though appeared before the trial Court, yet they remained absent subsequently, for which they were set ex parte. 7. Issues framed by the Trial Court: Basing on the rival pleadings, the trial Court framed the following issues for determination:- “(I) Whether the suit is maintainable? (II) Whether the plaintiff has cause of action for filing the suit? (III) Whether the suit is barred for non- joinder of necessary parties? (IV) Whether the Plaintiff is the only legal heir of Sumitra Barik and she is entitled to succeed to the properties of Sumitra ? (V) Whether Sumitra had adopted defendant No. 1 as her son on 22-5-79 and he is entitled to succeed the properties of Sumitra Barik? (VI) Whether the plaintiff has right, title and interest over the landed properties under Khata No.55 and 67 of village Girisuan? (Strike out on 25.11.2011) (VII) To what other relief, the plaintiff is entitled?” 8. Findings of the trial Court: Taking up issue nos. (IV) & (V) together for consideration at the outset, the trial Court first considered Page 6 of 30 whether defendant no.1 is the adopted son of Sumitra, as claimed by him. After analyzing the documentary evidence, including the plain paper will deed dated 22.05.1974 (Ext.B) and the oral evidence adduced by both parties, the trial Court disbelieved the claim of adoption mainly on the ground that defendant no.1 continued to be shown as the son of his natural father in all records and has been living in his natural father‟s house. The trial Court further found that the giving and taking of the child was not proved to satisfaction. 8.1. On the question whether the plaintiff is entitled to succeed to the properties of Sumitra, the trial Court held that after enactment of the Hindu Succession Act, 1956, Sumitra became the absolute owner of the properties succeeded by her from her husband. Such being the position, her re-marriage cannot forfeit her absolute right over the properties. On such basis and on the finding that the plaintiff is the only legal heir and successor of Sumitra, the trial Court held that she alone is entitled to succeed to the properties of her mother. Page 7 of 30 8.2. The principal issues being determined thus, all remaining issues were answered in favour of the plaintiff and the suit was decreed by granting all the reliefs claimed by her. 9. Being aggrieved, defendant nos.1 and 3 carried the matter in appeal. The First Appellate Court framed two issues (sic., points) for determination. “(a) Whether respondent No.1 is the adopted son of the said Sumitra? the said Sumitra (b) Whether the plaintiff being the daughter of through her marriage to one Rameswar Das is to succeed to her properties as her only legal heir?” 9.1. Findings of the First Appellate Court: In answering the first point, the First Appellate Court, after analyzing the oral and documentary evidence found that the trial Court had rightly held that defendant no.1 was never adopted by Sumitra during her widowhood. On the question of succession of the suit properties of Sumitra by the plaintiff, the Court heavily relied upon the judgment of the Supreme Court rendered in the case of Bhagat Ram v. Teja Singh,1 and a judgment of the 1 AIR 2002 SC 1 Page 8 of 30 Gauhati High Court rendered
Legal Reasoning
this Court in the present appeal, which has been admitted on the following substantial questions of law:- “(1) Whether the judgment of the learned Lower Appellate Court that the property inherited by a Hindu female from her first husband shall revert back to the legal heirs of her first husband and not to the issues of the the second husband is vitiated in law being contrary to Section 15 (2) (b) of the Hindu Succession Act, 1956?” female born through 11. Heard Shri C.A. Rao, learned Senior Counsel assisted by Shri Tarini Prasad Tripathy, learned counsel for the plaintiff-appellant, and Shri P.K. Rath, learned Senior 2 AIR 2003 Gauhati 92 Page 9 of 30 Counsel assisted by Shri A. Behera, learned counsel for defendant-respondents. (i) Submissions on behalf of plaintiff-appellant: Learned Senior Counsel Shri Rao would assail the impugned judgment only insofar as the same relates to the finding that the plaintiff is not entitled to succeed to the properties of Sumitra. Shri Rao argues that the trial Court had rightly discussed the law to the effect that a female Hindu succeeds to the properties of her husband as an absolute owner in view of Sec.14 of the Hindu Succession Act. It is further well settled that such absolute ownership cannot be qualified or nullified in any manner whatsoever including remarriage by the widow. In the instant case, admittedly, Prahallad died intestate leaving behind his mother and widow. Insofar as the widow Sumitra is concerned, she must be held to have succeeded to the properties of her late husband absolutely. The plaintiff was born out of her second marriage with Rameswar. In view of the settled position of law, as laid down by the Supreme Court and this Court in several judgments, the fact of remarriage cannot divest Sumitra from her absolute Page 10 of 30 ownership over the suit properties. According to Shri Rao, the First Appellate Court has misread the judgment of the Supreme Court which has no application to the facts of the present case. Further, Shri Rao has cited several judgments in support of his contentions, which would be discussed later. (ii) Submissions on behalf of defendant-respondents: Shri Prafulla Kumar Rath, learned Senior Counsel supports the judgment passed by the First Appellate Court by holding that the matter relating to succession of the properties of a female Hindu dying intestate is squarely governed by the provisions of Sec.15 of the Hindu Succession Act. As per sub-sec. (2) of Sec.15, it is the source from which the property was inherited, which is relevant to decide its succession. It is the settled law that the property would revert to persons related to the original owner and never intended to devolve on persons not even remotely connected to the original holder of the property. In the instant case, admittedly, Prahallad, the original holder of the property and his wife-Sumitra had no children. Therefore, the property of Prahallad would Page 11 of 30 devolve on his widow-Sumitra after his death at the first instance and thereafter, would revert back to the other legal heirs of Prahallad, because of absence of any issue out of her marriage with Prahallad. The plaintiff is not connected at all to the family of Prahallad and therefore, she cannot succeed to his property, as rightly held by the First Appellate Court. Shri Rath has also cited several judgments to buttress his arguments which would be discussed later. 12. Analysis & findings: 12.1. After discussing the facts of the case and the rival contentions put forth, this Court deems it apposite to discuss the relevant statutory provisions at the outset. In this context, Sections 14 and 15 of the Hindu Succession Act, 1956 are relevant. Sec.14 reads as follows:- “14. Property 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 her marriage, or by her own skill or exertion, or by Page 12 of 30 purchase or by prescription, or in any other manner whatsoever, and also any such property held by the her as commencement of this Act. immediately before stridhana (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.” 12.2. Having regard to the legislative history of Sec.14, it has been held that the rule laid down in sub-sec. (1) has very wide and extensive application and has to be read in a comprehensive manner. The Act overrides inter alia, the old law on the subject of „Stridhana‟ in respect of properties possessed by a female, whether acquired by her before or after the commencement of the Act and this section declares that all such properties shall be held by her as full owner. The Act confers full heritable capacity on the female heir and this section dispenses with the traditional limitations on the powers of a female Hindu to hold and transmit property. The effect of the rule laid down in this section is to abrogate the stringent provisions against proprietary rights of a female which are often regarded as evidence of her perpetual tutelage and to recognize her status as independent and absolute owner of property. Page 13 of 30 (Refer Mulla- Principles of Hindu Law, 20th Edn., Vol-II, Page 394). 12.3. In the case of Eramma v. Veerupana,3, the Supreme Court observed as follows:- “The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title, whether before or after the commencement of the Act. It may be noticed that the Explanation to s 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words ’as full owner thereof and not as a limited owner’ in the last portion of sub-s (1) of the section clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, s 14(1) of the Act contemplates that a Hindu female, who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called ’limited estate’ or ’widow’s estate’ in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder..... [Emphasis added] 12.4. In the case of Vaddeboyina Tulasama v. Seshi Reddy4, the Supreme Court adopted the approach of giving “most exhaustive interpretation” to the sub-section with a
Arguments
in the case of Smt. Dhanistha Kalita v. Ramakanta Kalita & Ors.2. Basing on such decisions, the Court held that the plaintiff is not entitled to succeed to the suit properties and the same would revert back to the legal heirs of Prahallad, the first husband of Sumitra, if there are any. On such findings, the judgment and decree of the trial Court was thus, partly reversed with the claim of defendant no.1 being allowed with the appropriate declaration. 10. Being aggrieved, the plaintiff has approached