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Smt. Sarala Bala Dei Vs. Banamali Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 201 of 1962
Judge
Reported inAIR1964Ori140
ActsHindu Law
AppellantSmt. Sarala Bala Dei
RespondentBanamali Sahu and ors.
Appellant AdvocateBrajamohan Patnaik, Adv.
Respondent AdvocateM.S. Rao, Adv. for Respondent No. 1
DispositionAppeal dismissed
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1. the unsuccessful plaintiff in the courts below is the appellant. 3 and the step-sister defendant 2 on the one hand and the plaintiff as purchaser from the better placed sister defendant 4. the defence of the purchaser defendant no. 1 is that he had purchased the disputed property from defendants '2 and 3 as aforesaid and acquired a good title. it does not apply where both the daughters are financially well up and well placed in life. 4 was better than that of defendant no. 4 mani dei is comparatively in better position, and condition of defendant no. 3 was not better......reliefs. the subject-matter to which this second appeal is confined is item no. 6 of the suit properties. 2. a geneological table showing the relationship of the parties other than the stranger purchasers is set out as follows : jaga hari sahu=champa ___________|______________ __________|______ | | | | | tara mani dei gokhei krishna rukmani d.3. d.4 (dead) (dead) d.2.plaintiff a stranger claims as purchaser from defendant no. 4. defendant no. 1 also a stranger claims as purchaser from defendants. nos. 2 and 3.3. on march 22, 1951 jaga executed a will in favour of her daughter defendant no. 4. on april 20, 1954, defendant no. 4 soldi the suit property to the plaintiff. on may 4, 1954 defendants 2 and 3 sold to defendant no. 1 their alleged 2/3rd share; defendant 3 is said to be.....
Judgment:

S. Barman, J.

1. The unsuccessful plaintiff in the Courts below is the appellant. The suit out of which this appeal arises was filed by the plaintiff for declaration of title and for setting aside a certain kabala made in favour of defendant No. 1 and other incidental reliefs. The subject-matter to which this second appeal is confined is item No. 6 of the suit properties.

2. A geneological table showing the relationship of the parties other than the stranger purchasers is set out as follows :

JAGA HARI SAHU=CHAMPA

___________|______________ __________|______

| | | | |

Tara Mani Dei Gokhei Krishna Rukmani

D.3. D.4 (dead) (dead) D.2.

Plaintiff a stranger claims as purchaser from defendant No. 4. Defendant No. 1 also a stranger claims as purchaser from defendants. Nos. 2 and 3.

3. On March 22, 1951 Jaga executed a Will in favour of her daughter defendant No. 4. On April 20, 1954, defendant No. 4 soldi the suit property to the plaintiff. On May 4, 1954 defendants 2 and 3 sold to defendant No. 1 their alleged 2/3rd share; defendant 3 is said to be indigent and so a preferential heir under Hindu Law. The plaintiffs case is that item No. 6 in dispute is Stridhan property of Jaga and items 1 to 5 are ancestral properties.

The dispute is between defendant No. 1 as purchaser from- indigent sister defendant No. 3 and the step-sister defendant 2 on the one hand and the plaintiff as purchaser from the better placed sister defendant 4. The defence of the purchaser defendant No. 1 is that he had purchased the disputed property from defendants '2 and 3 as aforesaid and acquired a good title.

4. The learned trial Court decreed the suit in part in that he declared the plaintiff's title in respect of undivided 50 per cent interest over suit items 1 and 5 and dismissed the plaintiff's suit so far as item No. 6 is concerned and declared defendant No. 1's title in respect of the said item No. 6 on the ground that it is Stridhan: property of Jaga and defendant No. 3 alone is entitled to get it -- Defendant No. 2 Rukmani as stepdaughter of jaga has no right to Jaga's Stridhan property. The learned lower appellate Court confirmed the decision of the trial Court. Hence this second appeal.

5. The simple point here is the question of preference between the two daughters of Jaga for purposes of inheritance in respect of item No. 6 -- their mother's Stridhan property. The rule about one married daughter excluding the other married daughter from inheritance, comes into operation only if one daughter is indigent while the other one is possessed of wealth. It does not apply where both the daughters are financially well up and well placed in life. Each case has to be decided on its facts and circumstances. In judging the respective claims of the married daughters their pecuniary condition is not to be examined minutely so as to find out if there is any shade of difference in their financial circumstance but it is only to be seen whether there is a marked degree of difference in such conditions so as to give one daughter prior right of inheritance.

6. In the present case, the finding of the learned trial Court with which the learned appellate Court agreed is that among the two sisters defendants Nos. 3 and 4 the condition of defendant No. 4 was better than that of defendant No. 3 at the time of inheritance and even now. The circumstances which weighed with the Courts below in coming to that conclusion are these :

Ext. C series C. S. Khatians show that defendant No. 4 Mani Dei's father-in-law had certain landed properties in the village of Tanar, Garapur and Gaidhuan; she lives in her husband's house; she has properties as per Ext. C series; in fact she got 3 to 4 mans of land and she is in occupation of her husband's house. On the other hand it is evident that defendant No. 3 Tara has no landed properties. There is thus marked difference in the financial position of defendant No. 3 Tara and defendant No. 4 Mani Dei. Defendant No. 4 Mani Dei is comparatively in better position, and condition of defendant No. 3 was not better.

In view of the marked difference in their financial position, defendant No. 3 Tara was entitled to succeed to the Stridhan property of her mother Jaga in preference to defendant No. 4 Mani Dei. The concurrent finding of both the Courts below on the point has been arrived at after proper application of the law on the subject.

7. In this view of the case the decision of the Court below is upheld. This appeal is dismissed with costs.


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