The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK L.A.A. No.70 of 2017 Samira Naik (Since Dead) Mamata Nayak & others ....... Appellants Khyamasila Patel & others ....... Respondents -Versus- For Appellants : Mr. D.R. Mohapatra, Advocate For Respondent Nos.1 & 2 : None For Respondent No.3 : Mr. B. Panigrahi, Addl. Standing Counsel ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing & Judgment: 23.07.2024 --------------------------------------------------------------------------------- S.K. Mishra, J. The present Appeal has been preferred against the Judgment dated 19.05.2017 passed in Land Acquisition Reference Case No.38 of 2015 on the ground that the parties to the said case being Class-1 heirs of the recorded tenant Dubraj Patel, each of them is entitled to get 1/6th share out of the compensation awarded for acquisition of land and the referral Court committed mistake by holding that daughters of Dubraj Patel namely, Raimati, Latabati and Sukanti are entitled to get their share out of the compensation amount notionally and not equally like Khyamasila and Tirthabasi, both sons of Dubraj Patel (present Respondent No.1 & 2). 2. The factual matrix of the case, as pleaded in the Appeal, is that as per the declaration of the Government of Orissa vide No.LA (c) 3052(R&DM) dated 31.01.2014, the land measuring area Ac.0.23 decimals under Hal Khata No.86 of Mouza Ramanda was acquired by the Government for construction of H/L Bridge over river IB. After acquisition of the aforesaid land, the L.A.O. ascertained owner in possession of the acquired land and settled the compensation amount of Rs.5,49,976/- in favour of the present Appellants and Respondent Nos.1 & 2. However, before disbursement of the compensation amount in favour of the awardees, the dispute arose between the Appellants and Respondent Nos.1 & 2. Thereafter, the present Appellants filed an application before the L.A.O., Sundargarh claiming their 1/6th share L.A.A. No.70 of 2017 Page 2 of 13 each over the compensation amount, for which, the L.A.O., instead of releasing the compensation amount in favour of the awardees, referred the matter to the Court below under Section 30 of the Land Acquisition Act, 1894 for apportionment and disbursal of the awarded amount in accordance with law. After referring the case to the Court below, the L.A.O deposited the compensation amount in the treasury vide Challan No.35 dated 24.06.2015. To show their relationship with the Respondents, the Appellants (Petitioners before the Court below) filed their show cause indicating their family genealogy, which is reproduced below: Dubraj Patel (dead) Rambhabati Patel (wife) Khyamasila Tirtha Bilasini Raimati Latabati Sukanti Purusottam (husband) Saibani Himadri Samira L.A.A. No.70 of 2017 Page 3 of 13 Dubraj Patel was the father of the Petitioners namely, Raimati, Latabati and Sukanti and maternal grand father of Petitioners Saibani, Himadri and Samira. Dubraj Patel died in the year 1995 leaving behind his widow Ramabhabati, two sons namely, Khyamasila & Tirthabasi and four daughters namely Bilasini, Raimati, Latabati and Sukanti. After the death of Dubraj and his widow Rambhabati, all the properties of Dubraj was succeeded by his sons and daughters as his Class-I heirs. 3. Further case of the Appellants is that, Dubraj Patel has got raiyati land at mouza-Remanda, which stands recorded exclusively in his name under Khata No.86 of Mouza Remanda and after his death, the said properties were devolved upon his sons and daughters, but in the meanwhile, one of the daughters of Dubraj namely Bilasini died and in her place, her son and daughter have succeeded her share land and they are the Petitioners named Samir, Himadri and Saibani. According to the Appellants, there has been no partition of the land under Khata No.86 among the sons and L.A.A. No.70 of 2017 Page 4 of 13 daughters of Dubraj. Now the said land under Khta No.86 has been acquired by the Government and compensation amount has been settled in the names of the awardees including the present Petitioners, but they being the Class-I heirs of the recorded tenant Dubraj Patel, each of them is entitled to get 1/6th share out of it. Hence, the Appellants prayed to release the compensation amount in their favour allotting 1/6th share each. 4. It is further case of the Appellants that after going through the oral as well as documentary evidences on record, the Court below came to a conclusion that the suit lands were the recorded lands of Ratnakar Patel, father of Dubraj Patel. After Ratnakar's death, the properties were recorded in the name of Dubraj Patel. The Court below also held that it is apparent from the evidence of P.W.1 that her father died much prior to coming into effect of the Hindu Succession (Amendment) Act, 2005. Accordingly, it was held that the daughters of Dubraj namely, Raimati, Latabati and Sukanti are L.A.A. No.70 of 2017 Page 5 of 13 entitled to get their share out of the compensation amount notionally and not equally like Kshyamasila and Trithabasa, both sons of Dubraj. The reference was answered holding that Opp. Parties No.1 & 2 (present Respondent Nos.1 & 2) each is entitled to 7/18th share, the Petitioners No.1 to 3 (Appellant Nos.1 to 3) each is entitled to 1/54th share whereas, Petitioner Nos.4 to 6 (Appellants Nos.4 to 6) each entitle to get 1/18th share. Hence, the present Appeal. 5.
Legal Reasoning
Heard Mr. Mohapatra, learned Counsel for the Appellants so also Mr. B. Panigrahi, learned Additional Standing Counsel for the State-Respondent No.3. Though notices were duly served on the private Respondent Nos.1 & 2, the said Respondents go unrepresented. 6. Mr. Mohapatra, learned Counsel for the Appellants, relying on the Judgment of the Supreme Court reported in (2020) 9 SCC 1 : 2020 (II) OLR SC 569 (Vineeta Sharma Vs. Rakesh Sharma & Others) submitted that the referral Court, though, in view of the admitted facts on record came to a conclusion that L.A.A. No.70 of 2017 Page 6 of 13 Bilasini, Raimati, Latabati and Sukanti are daughters of Late Dubraj Patel, instead of awarding apportionment of compensation amount equally at par with their brothers namely, Khyamasila and Tirtha, erroneously came to a conclusion that they are entitled to get their share out of compensation amount notionally and not equally, on the ground that their father died much prior to coming into effect of the Hindu Succession Amendment Act, 2005. Mr. Mohapatra further submitted that in view of the Judgment of the Supreme Court in Vineeta Sharma (supra), the view taken by the referral Court, being contrary to the settled position of law, is perverse and deserves interference. 7. As revealed from the record so also the genealogy of Dubraj Patel (dead), indicated in para-3 of the impugned Judgment, there is no dispute that Khyamasila and Tirtha are the sons and Bilasini, Raimati, Latabati and Sukanti are the daughters of Late Dubraj Patel. However, the referral Court passed the impugned Judgment holding that the daughters of late Dubraj Patel are entitled to get their share out of the compensation amount notionally and not equally like their brothers namely, Khyamasila and Tirtha. L.A.A. No.70 of 2017 Page 7 of 13 8. In view of such submissions made by the learned Counsel for the Appellants, it would be apt to reproduce below the paragraph Nos.60, 68, 69 & 137 to 137.5 of the judgment in Vineeta Sharma (supra). the concept of “60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener “in her own right” and “in the same manner as the son”. Section 6(1)(a) the unobstructed contains heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9-9-2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or testamentary there be any alienation, disposition of the property or partition which has taken place before 20-12-2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. if L.A.A. No.70 of 2017 Page 8 of 13 law 68. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in Section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of of uncodified Hindu unobstructed heritage has been given a concrete shape under the provisions of Sections 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by heritage. According the obstructed Mitakshara law, as coparcenary Hindu administered which is recognised in Section 6(1), it is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment i.e. 9-9-2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5). to The effect of the amendment is that a 69. daughter is made coparcener, with effect from the date of amendment and she can claim is a necessary partition also, which concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by L.A.A. No.70 of 2017 Page 9 of 13 Mitakshara law. The coparcenary must exist on 9-9-2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9-9-2005, inheritance is not by survivorship but by testamentary succession as intestate or provided in substituted Section 6(3). 137. Resultantly, we answer the reference as under: contained of provisions Section 6 in 137.1. The the Hindu substituted Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9- 2005 with savings as provided in Section 6(1) as to the disposition or alienation, testamentary disposition partition or which had taken place before the 20th day of December, 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9- 2005. 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did the actual partition or not bring about L.A.A. No.70 of 2017 Page 10 of 13 female. disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. provisions The of 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. (Emphasis supplied) 9. In view of the admitted facts on record so also the settled position of law, as held in Vineeta Sharma (supra), this Court is of the view that the impugned judgment dated 19.05.2017 passed in Land Acquisition Reference Case No.38 L.A.A. No.70 of 2017 Page 11 of 13 of 2015 by the Senior Civil Judge, Sundargarh deserves interference. Accordingly, the same is set aside and quashed. 10. The matter is remitted back to the referral Court for re-adjudication of the said issue regarding right of the present Appellants of equal share at par with their brothers, keeping in mind the ratio of the judgment as held in Vineeta Sharma (supra). It is made clear that since after completion of pleadings and evidence, the Court below passed the said faulty Judgment there is no need to permit the parties to lead further/additional evidence. As both Khyamasila and Tirtha (Respondent Nos.1 & 2), on being duly noticed by this Court, did not appear in this Appeal and the issue involved being a pure question of law, which has already been decided by the Supreme Court in Vineeta Sharma (supra), on production of the certified copy of this order, the Court below shall proceed further and pass an order afresh, in terms of observation made above, regarding the apportionment of the compensation amount equally amongst the sons and daughters of Late Dubraj Patel as well as their legal heirs within three months from the date of production of the certified copy of this order. L.A.A. No.70 of 2017 Page 12 of 13 11. With the aforesaid observation and direction, the
Decision
Appeal stands allowed and disposed of. 12. Urgent certified copy of this order be granted on proper application. …….….…………………… S.K. MISHRA, J. High Court of Orissa, Cuttack The 23rd July, 2024 /Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-Jul-2024 19:00:57 L.A.A. No.70 of 2017 Page 13 of 13