Laxmidhar Sahoo & Anr. vs Batakrushna Sahoo

From the judgment and decree dated 14.12.2012 and 27.12.2012, respectively, passed by the District Judge, Khurda in R.F.A.No.44 of 2007 confirming the judgment and decree dated 11.05.2007 and 21.06.2007, respectively, passed by the Civil Judge (Senior Division), Bhubaneswar in T.S. No.152 of 1994-I.

__________ Laxmidhar Sahoo & another ...... Appellants

Versus

Batakrushna Sahoo ...... Respondent

For Appellants : M/s. Bidhayak Patnaik, S.K. Swain & B. Rath

For Respondent : M/s. Mahitosh Sinha & P.K. Mahali

PRESENT :

THE HONOURABLE MR. JUSTICE RAGHUBIR DASH

Date of hearing : 14.10.2014 Date of judgment : 03.11.2014

R. DASH, J.

This Second Appeal is against the judgment and decree dated

14.12.2012 and 27.12.2012, respectively, passed by the learned

District Judge, Khurda in R.F.A.No.44 of 2007 confirming the

judgment and decree dated 11.05.2007 and 21.06.2007, respectively,

passed by the learned Civil Judge (Senior Division), Bhubaneswar in

T.S. No.152 of 1994-I.

2. Defendant Nos.2 and 3 have preferred this appeal.

Respondent herein is the plaintiff before the trial court. Defendant

No.1-Late Kumar Sahoo, the adoptive father of plaintiff-Respondent, 2

having died during pendency of the First Appeal his name was

allowed to be deleted. In this judgment the parties will be addressed

as per their respective nomenclature in the plaint.

3. Facts admitted by the parties are that plaintiff is the

adopted son of D-1 and his wife Late Ahalya Sahoo who has passed

away on 24.12.1993; that said Ahalya Sahoo was the only daughter

of Late Arta Sahoo and Late Nishamani; that the suit immovable

property described in Lot No.1 of the plaint schedule was partly

purchased in the name of Ahalya Sahoo by her parent and part of it

is inherited by her from her mother, Nishamani; that after the death

of Ahalya, her adopted son (plaintiff) went to his maternal uncle's

house to be taken care of during his minority; that plaintiff's adoptive

father (defendant No.1) alienated the plaint schedule Lot No.1

property to defendant Nos.2 and 3 under Registered Sale Deed

No.5437 dated 28.12.1993, just 4 days after the death of Ahalya and

during minority of the plaintiff.

The plaintiff filed the suit inter alia for a declaration that

the Registered Sale Deed No.5437 dated 28.12.1993 is not binding on

him and no title has passed on to the vendees (D-2 and D-3) under

the sale deed.

4. Plaintiff's case, in short, is that the suit immovable

properties were inherited by her mother from her parents and,

therefore, in the presence of the plaintiff, the property did not devolve 3

upon Ahalya's husband (D-1). Further case is that D-1 had no right,

title and interest in the suit immovable properties and, therefore, the

sale deed executed by him cannot convey any title to D-2 and D-3.

The plaintiff has also taken the stand that D-2 and D-3 could manage

to obtain a sham sale deed inasmuch as the execution of the deed

was not the mental act of D-1.

5. The defendants filed a joint written statement denying

the allegation that the Registered Sale Deed is a sham deed. They

have asserted that D-1 was the karta of the family consisting of his

wife, his son and he himself. After death of his wife, D-1 was

providing all financial help to his minor son, who was staying in his

maternal uncle's house to get education. D-1 alienated the suit

immovable properties for legal necessity, i.e., to meet expenses for

Shraddha ceremony of Ahalya and to construct a house. The sale

transaction was for a consideration of Rs.50,000/- paid to D-1 and it

was followed by delivery of possession. Ever since the transfer of the

land, D-2 and D-3 have been in possession thereto. It is also claimed

that after death of Ahalya the suit property devolved upon the

plaintiff and D-1 simultaneously as per the provision contained in

Section 15(1)(a) of the Hindu Succession Act, 1956 (for short, the

Act).

6. Both the learned courts below have held that since

Ahalya died leaving behind a son and the source of inheritance is her 4

parent, the rule of succession would be governed by Section 15(2)(a)

of the Act and, accordingly, the suit immovable property would

devolve upon her son to the exclusion of her husband. On behalf of

the appellants it is argued that learned courts below have

misconceived the scope of Section 15(2)(a) of the Act, inasmuch as

Ahalya having died leaving behind a son, the general rule of

succession laid down under Section 15(1)(a) read with Section 16 (1)

of the Act would govern the field and both the son and the husband

would succeed simultaneously.

7. The Second Appeal has been admitted on the following

substantial questions of law:-

(1) When the admitted facts are that the deceased Ahalaya had died leaving behind one son and her husband and the Lot No.1 of plaint schedule property was inherited by her from her parents, whether the learned courts below have committed error in law in recording concurrent finding that the property will not devolve upon her husband simultaneously with her son under Section 15(1)(a) of the Hindu Succession Act but it shall devolve upon her son only ?

(2) If the property in Lot No.1 of the plaint schedule will devolve simultaneously on the father and the son, whether Section 8 of the Hindu Minority and Guardianship Act, 1956 will operate against the transfer of the property made by the father ?

8. For ready reference the provisions of law contained in

Section 15 of the Act is quoted hereunder:

"15. General rules of succession in the case of female Hindus- (1) The property of a female Hindu 5

dying intestate shall devolve according to the rules set out in Section 16, -

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1), -

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-

section (1) in the order specified therein, but upon the heirs of the husband."

There is no dispute over the proposition of law that if a

Hindu female dies intestate without leaving any issue then the

property inherited by her from her father or mother would go to the

heirs of her father whereas the property she has inherited from her

husband or her father-in-law would go to the heirs of her husband. In

the case in hand, the female Hindu has died leaving behind her son

as well as her husband and the suit property she has inherited from 6

her parent. According to the learned counsel for the appellants, in

such a contingency the property shall devolve upon her son and her

husband simultaneously in accordance with sub-section (1) of Section

15 of the Act. But, according to the learned counsel for the

Respondent the husband stands excluded.

9. While analyzing the aforequoted provisions of law,

Hon'ble apex Court in V. Dandapani Chettiar V. Balasubramanian

Chettiar (dead) by Lrs. and others, reported in 2003 (II) OLR (SC) -

497 has observed as follows:

"9. The above Section propounds a definite and uniform scheme of a succession to the property of a female Hindu who dies intestate after the commencement of the Act. This Section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified in Sub-section (1). Two exceptions, both of the same nature are engrafted by Sub-section (2) on the otherwise uniform order of succession prescribed by Sub-section (1). The two exceptions are that if the female dies without leaving any issue, then (1) in respect of the property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five Entries (a) to (e), but upon the heirs of the father; and (2) in respect of the property inherited by her from her husband or father-in-law, it will devolve not according to the order laid down in the five Entries (a) to (e) of Sub-

section (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to the property "inherited" from the father, mother, husband and father- in-law of the female Hindu and do not affect the property acquired by her by gift or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its operation is confined to the case 7

of dying without leaving son, a daughter or children of any predeceased son or daughter.

10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15 (2)(a). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be - if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father."

10. In S.R. Srinivasa and Ors. -Vrs.- S. Padmavathamma,

reported in 2010 (II) OLR (SC) - 286, it is further observed as follows:

".....basic aim of Section 15(2) is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source. It was enacted to prevent inherited property falling into the hands of strangers"

In Dilip Kumar Vrs. Damodar Narayanrao

Rammangudkar, reported in AIR 2006 Karnataka 115, it has

been held that where the female Hindu has died intestate leaving

behind her son and husband, Section 15 (1) would be applicable as it

is clear from the provisions of sub-section (2) of Section 15 of the Act 8

that absence of any son or daughter of the deceased (including

children of any pre-deceased son or daughter) is a condition

precedent for application of provision of Section 15 (2) of the Act.

11. In the same light the provisions of Section 15 (2) of the

Act have been analysed in the text book Mulla on Principles of Hindu

Law (21st Edition 2010). At page-1185-1186 of the book, the law laid

down in Section-15 of the Act has been summarized as follows:

(1) The general order of succession laid down in entries (a) to (e) in sub-s (1) applies to all property of a female intestate however acquired except in case of property inherited by her from her father, mother, husband or father-

in-law.

(2) In case of a female intestate leaving a son or a daughter or a child of a pre-

deceased son or of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously; and if the husband of the intestate is alive they take simultaneously with him in accordance with entry (a). In such a case sub-s (2) does not at all come into operation.

(3) In case of a female intestate dying without issue but leaving her husband, the husband will take all her property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death.

9

(4) In case of female intestate dying without issue property inherited by her from her husband or father-in-law (the husband being dead), will go to the heirs of the husband and not in accordance with the general order of succession laid down in sub-s (1).

(5) In case of a female intestate dying without issue property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in sub-s (1).

At page-1189 of the text book, Illustration No.(ii) is to the

effect that if the female Hindu dies leaving her surviving husband and

any issue, then all her property including property which is inherited

from her parent would devolve simultaneously upon her husband

and her issues as heirs specified in entry (a) of Section-15(1) of the

Act. The Illustration is extracted hereunder:-

(ii) A dies leaving her surviving a son S;

an adopted daughter D; and her husband H. All the property of A, howsoever acquired, will devolve simultaneously upon S, D and H as heirs specified in Entry (a).

12. What is understood from the aforestated analysis of the

rules of succession contained in Section 15 of the Act is that while

Section 15 (1) lays down the ordinary rule of succession, sub-section

(2) which starts with a non-obstante clause carves out two exceptions:

(i) if the female dies without leaving any issue, then the property 10

inherited by her from her father or mother would devolve not

according to the general rule laid down in sub-section (1) but upon

the heirs of her father, and (ii) if the female dies without leaving an

issue, the property inherited by her from her husband or from her in-

laws would devolve not according to the general rule laid down in

sub-section (1) but upon the heirs of the husband. Thus, it is made

clear that when a female Hindu dies intestate without leaving any

son, daughter or children of any pre-deceased son or daughter the

property inherited by her from her father or mother and/or from her

husband or father-in-law is to go back to the source from which she

got it. From this position of law it can be construed that if a female

Hindu dies intestate leaving behind any issue, the exception

contained in sub-section (2) of Section-15 of the Act will not come into

operation and it is the ordinary rule of succession contained in sub-

section (1) of Section 15 of the Act that will govern the field.

13. Learned lower Appellate Court is of the view that since

sub-Section (2) starts with a non-obstante clause, the provisions of

sub-Section (1) cannot be taken aid of and the former has to be read

in isolation of the latter. Then it proceeds to hold that if a female

Hindu dies leaving behind any issue then the property that she has

inherited from her parents would devolve only upon the issues (son or

daughter including the children of any predeceased son or daughter)

and not upon any other heirs as listed in sub-Section (1) including 11

her husband. According to learned lower Appellate Court, the

husband would under no circumstances come into picture of

inheritance in respect of the property the female Hindu has inherited

from her parents.

14. Learned counsel for the Respondent justifies this view of

the learned Courts below by relying on the judgment of the Hon'ble

apex Court in Radhika v. Aghnu Ram, reported in (1995) 2 East LJ

13 (SC). In Radhika's case (supra) the female Hindu (Radhika) had

died leaving behind her husband and one son. Her husband filed a

suit claiming half share as her Class-I heir. The trial court dismissed

the suit on the ground that during the life time of Radhika she had

bequeathed the properties to her son under a gift deed. In the First

Appeal, the District Judge reversed the decree and held that the gift

was not valid and that the husband and the son being Class-I heirs

are entitled to partition of the property in equal moiety. The Second

Appeal challenging the decree of the District Judge was dismissed. In

the appeal by Special Leave, Hon'ble apex Court, taking note of the

provisions of Section 15 of the Act, observed that for the property

inherited by a female Hindu from her father or mother, in the absence

of her son, daughter or children of the pre-deceased son or daughter,

the succession opens to heirs of the father or mother and not to

Class-I heirs in the order specified in sub-section (1) of Section-15

and in the order of Section-16 of the Act. In other words, it is 12

observed, the children and the children of pre-deceased son or

daughter of the Hindu female alone are entitled to get such property

and the husband stands excluded from the succession to the property

inherited by a female Hindu from her father's side.

15. It is true that the facts situation in the case in hand is

similar to that of Radhika's case (supra). Learned counsel for the

Appellants tries to distinguish the fact situation of both the cases

submitting that in Radhika's case deceased Radhika, under a gift

deed, had bequeathed the suit property to her son. But, it cannot be

distinguished that way. The above observation of the Hon'ble Apex

Court is on the general application of the rule laid down under

Section 15 (2) of the Act. However, with due respect to the Hon'ble

Apex Court's such observation, this Court is of the view that the

observation made by the Hon'ble Apext Court in V. Dandapani

Chettiar's and S.R. Srinivasa's cases, which have been pronounced

subsequent to Radhika's case, are to be followed and, accordingly, it

is to be held that in the presence of any issue the Hindu female's

property which she inherited from her parent would devolve

simultaneously on her husband and her issue (s) in accordance with

Section 15 (1) read with Section 16 of the Act.

16. As regards the second question on the applicability of

Section 8 of the Hindu Minority and Guardianship Act, 1956, it is

contended by the learned counsel for the appellants that when the 13

property devolves simultaneously upon the plaintiff and defendant

No.1 (the son and the husband of the deceased female Hindu) and

there was no partition of the said property, sub-sections 2 and 3 of

Section 8 of the Minority and Guardianship Act will have no

application and, consequently, the sale deed executed by D.1

alienating the entire of Lot-I properties in favour of the respondents is

not voidable at the instance of the plaintiff. In support of the

contention learned counsel cites the judgment of the apex Court

reported in AIR 1996 SC 2371 (Sri Narayan Bal V. Sridhar Sutar),

besides a judgment of this High Court reported in 1974 (1) CWR 432

(Sunamani Dei V. Babaji Das and others) and a judgment of Bombay

High Court reported in AIR 1994 Bombay 152 (Narayan Laxman

Gilankar V. Udayakumar Kasinath Kaushik). But all these cited

judgments are in respect of property in which the minor in the

respective cases had an undivided share in joint Hindu family

property. The law is well settled that the interest of a minor in the

joint family property is kept outside the ambit of Sections 6 and 12 of

the Hindu Minority and Guardianship Act. In respect of minor's

undivided interest in joint family property the natural guardian of the

minor can deal with it in accordance with the Hindu Law. But, the

property which is subject matter of the case in hand cannot be said to

be in the nature of joint family property, and, merely for the reason

that the properties devolved upon the father and the son 14

simultaneously, it cannot be said that the son had an undivided

interest in the joint family property. Therefore, Section 8 of the Hindu

Minority and Guardianship Act will operate against the transfer of the

property made by the father under the Registered Sale Deed dated

23.11.1993. Consequently, the sale transaction is voidable to the

extent of minor's 50% interest in Lot-I of the plaint schedule.

17. In view of the answer to both the substantial questions of

law the Second Appeal is allowed. Impugned judgment and decree

passed by the learned 1st Appellate Court confirming the judgment

and decree of the Trial Court are set aside. Plaintiff's suit is decreed in

part. The sale transaction vide the Registered Sale Deed dated

23.11.1993 is held to be void to the extent of plaintiff's 50% interest

in the plaint schedule Lot-I property. Since the suit is of the year

1994 and this Court does not want the parties to be driven to another

round of litigation to have their respective share carved out, this

Court observes that this be treated as a preliminary decree giving

liberty to either of the parties to approach the trial court to initiate

final decree proceeding to get the property partitioned.

There shall be no order as to cost.

..............................

R. Dash, J.

Orissa High Court, Cuttack The 3rd November, 2014/A.K.Kar, Secretary D. Aiech, Sr. Steno