Skip to content


Abhina Sahu Vs. Daitari Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 104 of 1956
Judge
Reported inAIR1957Ori100; 23(1957)CLT46
ActsSuccession Act, 1925 - Sections 214
AppellantAbhina Sahu
RespondentDaitari Sahu and ors.
Appellant AdvocateR. Mohanty, Adv.
Respondent AdvocateR.N. Misra, Adv.
DispositionApplication dismissed
Cases ReferredKallian Rai v. Kashi Nath
Excerpt:
.....the language employed may properly be held to comprehend the law of survivorship as well. ' 3. the position doubtless is now for the better after the introduction of the new succession act whereby the widow gets the absolute right......bewa, (s) air 1955 orissa 135 (a), to the effect that the devolution ol an estate on the hindu widow under section 3 (2) of the hindu women's rights to property act is neither by survivorship, nor by inheritance, but is a special right created in favour of the widow by the special statute. in that decision of this court, their lordships did not follow the view of the patna high court reported in kedar nath v. radha shyam, air 1953 pat 81 (b), as also the case reported in sive-shwar prusad narain singh v. har narainmal, air 1945 pat 116 (c).2. the point raised by mr. r. mohanty, learned counsel for the petitioner undoubtedly is a very interesting one. he contended that the widow-plaintiff having succeeded to the interest of her husband, cannot maintain the present suit without.....
Judgment:
ORDER

Das, J.

1. This is an application in revision by the defendant against the decision of the Small Cause Court Judge, Cuttack, holding on a preliminary issue that the widow-plaintiff is entitled to bring the suit along with other plaintiffs, and accordingly the suit is maintainable. The plaintiff's suit is based upon a pro-note executed in favour of one deceased Saratha Sahu who is the husband of plaintiff 2 and father of plaintiff 1 and uncle of plaintiff 3.

The dclence of the defendant-petitioner was that the suit by the widow-plaintiff is not maintainable in the absence of a succession certificate as provided under Section 214 of the Indian Succession Act. The learned Small Cause Court Judge held relying upon a decision of this Court reported in Ganga-dhar Raut v. Subhashiiri Bewa, (S) AIR 1955 Orissa 135 (A), to the effect that the devolution ol an estate on the Hindu widow under Section 3 (2) of the Hindu Women's Rights to Property Act is neither by survivorship, nor by inheritance, but is a special right created in favour of the widow by the special Statute. In that decision of this Court, their Lordships did not follow the view of the Patna High Court reported in Kedar Nath v. Radha Shyam, AIR 1953 Pat 81 (B), as also the case reported in Sive-shwar Prusad Narain Singh v. Har Narainmal, AIR 1945 Pat 116 (C).

2. The point raised by Mr. R. Mohanty, learned counsel for the petitioner undoubtedly is a very interesting one. He contended that the widow-plaintiff having succeeded to the interest of her husband, cannot maintain the present suit without obtaining a succession certificate. Section 214 of the Indian Succession Act runs as follows:

'No Court shah (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, .....'

Mr. Mohanty for his contention relied upon the view taken by the Patna High Court and particularly on a decision of the said Court reported in Mt. Rajendra-bati v. Mungalal, AIR 1953 Pat 129 (D), Narayan, J. in that case held that a suit by a widow of a deceased coparcener in a joint Hindu family for recovery of money due upon a handnote executed in favour of her deceased husband is not maintainable unless she obtains a succession certificate as laid down in Section 214 of the Succession Act. The reason being that under Section 3 of the Hindu Women's Rights to Property Act, she acquires the interest of her deceased husband in the family property not by survivorship but as his heir,

In coming to this decision Narayan, J. relied upon certain previous decisions of the Court. I have already referred to two such decisions of the Patna High Court reported in AIR 1945 Pat 116 (C) and AIR 1953 Pat 81 (B) which have not been followed by this Court, This decision of the Patna High Court in AIR 1953 Pat 129(D) does not seem to have been followed by their Lordships of the Andhra High Court in a very recent decision ol that Court reported in Indian Leal Tobacco Development Ltd v. K. Kotayya, (S) AIR 1955 Andhra 135 (E). Mr. Misra, learned counsel appearing on behalf of the opposite parties relied very strongly upon this decision in support ol his contentions.

In that case Umamaheswaram, J. referred to a decision of the Federal Court reported in Hindu Women's Rights to Property, Act 1937, In the matter of, AIR 1941 FC 72 (F) wherein Sir Maurice Gwyer C. J. dealt with the meaning of the expressions 'devolution', 'succession' & 'inheritance' in relation to Hindu Women's Rights to Property Act, 1937 which came up for decision by a special reference by His Excellency the Governor-General of India under Section 213 of the Constitution Act. The learned Chief Justice held that succession also includes survivorship. Thus while dealing with the question of 'devolution', 'succession' and 'inheritance' his Lordship held:

'It is equally important to remember that neither in their ordinary grammatical significance nor by a long continued use in a technical sense have the words 'devolution' and 'succession' acquired a connotation that would preclude their application to describe the operation of the rule of survivorship as above explained. Eminent text-writers and Judges have used one or the other of those terms to include the accession of right which takes place on the death of one of the members of a Mitakshara joint family. Many enactments of Parliament and of the Indian Legislature have used the words 'inheritance' and 'succession' in juxtaposition, justifying the inference that succession is either another category from, or wider category than 'inheritance'.

If in these enactments 'succession' should be held not to include the principle of survivorship, if would be difficult to say what else that word is meant to refer to and in any other view, the continued administration of that part of the Hindu Law by the British Indian Courts could not have been provided for, because there are no other appropriate words in those provisions.

Such being the position as to the meaning of those words, it is permissible to add that it is difficult to conceive of any reason why in framing lists II and III Parliament should have thought fit to take away the law of survivorship from the jurisdiction of the Indian Legislature, and there is no justification for attributing oversight either when, as above explained, the language employed may properly be held to comprehend the law of survivorship as well.'

Thus, according to the learned Chief Justice the words 'succession' and 'devolution' are wide enough to include the operation of the principle of survivorship and are not confined to 'inheritance' simpliciter. Further while dealing with the restricted meaning of 'succession' in the Succession Act, emphasis is also laid by the learned Chief Justice on the use of the words 'effects of the deceased person' in Section 214. Reliance was placed on a decision of the Madras High Court reported in Natarajan Chettiar v. PerumalAmmal, AIR 1943 Mad 246 (G) wherein Horwill, J. held:

'I do not however think that it follows that because the widow does not obtain her right by survivorship that she must obtain it by inheritance. The effect of Section 3, Clauses (2) and (3) may be regarded as a survival of the husband's person in the wile, giving her the same rights as her husband had except that she can alienate property only under certain circumstances. As the widow did not inherit her right, no succession certificate is necessary.'

3. The position doubtless is now for the better after the introduction of the New Succession Act whereby the widow gets the absolute right. Mr. Misra referred to another decision of the Madras High Court reported in Venkatalakshmi Ammal v. Central Bank of India, Ltd. 1956-2 Mad LJ. 114 (H), where it was held that the object of taking out a succession certificate under Section 214 of the Indian Succession Act is to give security to the debtors paying the debts due to the deceased and thus facilitate the collection of debts on succession.

The purpose of the Act is not to enable litigants to have an opportunity of litigating contested questions of title to property. Under Section 3(1) of the Hindu Women's Rights to Property Act, the widow of a deceased gets a statutory right to the separate property of her husband. She does not get the right by succession which would entail the taking out of a succession certificate. It is a special statutory right which the widow gets under the particular enactment. She stands in the shoes of her husband and is entitled to collect the amount due to her husband.

It was further held fhat it is no doubt true that the position of a widow is betwixt and between, but it is certainly clear that she does not get this separate property by succession which would entail the taking out of a succession certificate. Reference may usefully be made to a decision of the Bombay High Court reported in Nagappa Narayan v. Mukumbe, AIR 1951 Bom 309 (I). I may also refer to a decision of the Allahabad High Court in Kallian Rai v. Kashi Nath, AIR 1943 All. 188 (J) where it was held that there is no automatic partition of the joint family in the joint family property.

But so long as partition has not been made, the status of a joint Hindu family continues and although she may not be a coparcener with the other sharers in the sense that the principle of survivorship no longer subsists, it cannot be said that she is not a member of a joint Hindu family as long as there is no partition. She is therefore; capable of being represented by the karta of the family in business transactions and suits by the Karta. In view of the above decisions and particularly of the Federal Court with utmost respect, I am unable to follow the Patna view. It appears that the Federal Court decision referred to above was not brought to the notice of their Lordships.

4. Now by reference to the plaint in this case, it is clear that the loan was advanced by Saratha Sahu. In the character of a Karta of the joint family and on his death the money is due to the members of the joint family and his legal representatives. Therefore, I have no doubt in my mind that the money is due to the widow not by succession but by survivorship and it is thus not necessary that she should obtain a succession certificate before she can proceed to realise the amount by a suit.

5. Accordingly, the sole contention of Mr. Mohanty fails and this application is dismissed, but inthe circumstances, without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //