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Aparti Bewa Vs. Suna Stree - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 185 of 1961
Judge
Reported inAIR1963Ori166
ActsHindu Succession Act, 1956 - Sections 15(2) and 9
AppellantAparti Bewa
RespondentSuna Stree
Appellant AdvocateD.P. Mohapatra, Adv.
Respondent AdvocateAsok Das, Adv.
DispositionAppeal dismissed
Excerpt:
.....the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt..........pana (defendant no. 2) was remarried. so in the settlement of 1932 the daughter hira was recorded. hira died on 13-11-57 and after her death the plaintiff is entitled to the property and the possession thereof.2. defendant no. 1 alone contested the suit. she took two-fold defence. firstly, the plaintiff was the daughter of one kantha jena and not the daughter of saita jena, and secondly chakra jena was alive and was a preferential heir to the plaintiff.3. both the courts concurrently found that the plaintiff is the daughter of saita jena and that chakra was alive. the learned trial court dismissed the suit holding that chakra was a preferential heir and was entitled to the disputed property. the learned lower appellate court decreed the suit holding that the plaintiff was entitled to the.....
Judgment:

G.K. Misra, J.

1. Defendant No. 1 is the appellant against a reversing judgment. The plaintiff's suit is for declaration of title and confirmation of possession or in the alternative for recovery of possession. A genealogy appended to the plaint would show the relationship of the parties.

SAITA

|

____________________ ______________________

| | |

Rushi Pathani Daughter

--Widow Aparti W- Pana Bewa Sona Street

D.1 D.2 Plaintiff.

| |

Chakra. Daughter Mst. Hira

(died).

The plaintiff's case is that Rushi and Pathani died in a divided status and the disputed properties fell to the share of Pathani. Pathani died before 1932. Soon after Pana (defendant No. 2) was remarried. So in the settlement of 1932 the daughter Hira was recorded. Hira died on 13-11-57 and after her death the plaintiff is entitled to the property and the possession thereof.

2. Defendant No. 1 alone contested the suit. She took two-fold defence. Firstly, the plaintiff was the daughter of one Kantha Jena and not the daughter of Saita Jena, and secondly Chakra Jena was alive and was a preferential heir to the plaintiff.

3. Both the Courts concurrently found that the plaintiff is the daughter of Saita Jena and that Chakra was alive. The learned Trial Court dismissed the suit holding that Chakra was a preferential heir and was entitled to the disputed property. The learned lower Appellate Court decreed the suit holding that the plaintiff was entitled to the property after the death of Hira.

4. Section 15(2)(a) of the Hindu Succession Act of 1956 is as follows:

'(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 ton 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;'

Hira inherited the property from her father Pathani. Admittedly Hira died unmarried. So the property shall devolve upon the heirs of Pathani. Amongst the heirs of Pathani, the plaintiff comes first as coming under Class II, sub-class II (4) -- sister, and Chakra comes under sub-class IV (1). Under Section 9 of the Act, among the heirs specified in the schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

5. The plaintiff is therefore entitled to the disputed property. The appeal fails and is dismissed, but without costs of this Court.


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