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Asoke Naidu Vs. Raymond S. Mulu - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberS.M.A. No. 14 of 1976 with C.R. No. 2074 (M) of 1975
Judge
Reported inAIR1976Cal272
ActsSuccession Act, 1925 - Section 372; ;Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101; ;Hindu Succession Act, 1956 - Sections 2 and 26; ;Hindu Law; ;Hindu Adoptions and Maintenance Act
AppellantAsoke Naidu
RespondentRaymond S. Mulu
Appellant AdvocateBhupendra Kr. Panda, Adv.
Respondent AdvocateNagendra Mohan Saha, Adv.
Excerpt:
- .....found that the appellant before him is & convert and converts are not disqualified heirs under the hindu succession act. he allowed the appeal but sent the case back on remand to the learned munsif as the learned munsif did not arrive at any finding whether the appellant before this court is an adopted son. 6. mr. nagendra mohan saha, learned advocate appearing on behalf of the respondent contends that no second appeal lies against an order rejecting the application under section 372 of the indian succession act. we agree with the objection raised by mr. saha and hold that the appeal is not maintainable. 7. mr. bhupendra kumar panda, learned advocate appearing on behalf of the appellant submits that he has an alternative application under section 115 of the code and if this court is.....
Judgment:

N.C. Mukherji, J.

1. This appeal has been filed against the order dated 28th February 1975 passed by the Additional District Judge, 1st Court Midnapore in Misc. Appeal No. 189 of 1974 reversing those of the learned Munsif, Jhargram in J. Misc. Case No. 79 of 1972 under Section 372 of the Indian Succession Act.

2. The facts of the case may briefly be stated as follows:--

3. The respondent filed an application under Section 372 of the Indian Succession Act for issue of Succession certificate. The respondent's case is that Dr. (Miss) Janaki Naidu, who was a lady doctor attached to Jhargram Sub-Divisional Hospital died at the said hospital unmarried on 19-3-1972. Dr. Naidu was a Hindu and she left the respondent who is her brother as her only heir. Dr. Naidu left some amount in the local Branch of the State Bank of India and the Jihargram Post Office Savings Bank. That the respondent being the sole heir of Dr. Naidu is entitled to apply for a succession certificate.

4. The appellant contested the case by filing objection denying that the respondent was the only heir. It is his case that the applicant being a Christian cannot be an heir to a Hindu. His further case is that his mother died immediately after he was born and before her death she made him over to Dr. Naidu who was then attached to Malda Hospital. Dr. Naidu adopted the appellant as her son and brought him up. In such circumstances the appellant is entitled to a succession certificate as the adopted son and only heir of Dr. (Miss) Naidu.

5. The learned Munsiff found that as the respondent is a Christian he is not entitled to get a succession certificate. In that view of his finding he dismissed the application. Being aggrieved the respondent filed an appeal before the learned District Judge. The appellate Court found that the appellant before him is & convert and converts are not disqualified heirs under the Hindu Succession Act. He allowed the appeal but sent the case back on remand to the learned Munsif as the learned Munsif did not arrive at any finding whether the appellant before this Court is an adopted son.

6. Mr. Nagendra Mohan Saha, learned Advocate appearing on behalf of the respondent contends that no second appeal lies against an order rejecting the application under Section 372 of the Indian Succession Act. We agree with the objection raised by Mr. Saha and hold that the appeal is not maintainable.

7. Mr. Bhupendra Kumar Panda, learned Advocate appearing on behalf of the appellant submits that he has an alternative application under Section 115 of the Code and if this Court is satisfied that the order passed by the learned appellate Court is irregular and without jurisdiction this Court can pass appropriate orders on the said application.

8. Mr. Panda submits that the appellate Court was wrong to hold that a convert from Hinduism is not a disqualified heir. Mr. Panda refers to us Section 2 of the Act which provides that 'this Act applies to any person, who is a Hindu by religion in any of its forms or developments and to any person who is a Buddhist, Jaina or Sikh by religion and to any other person who is not a Muslim, Christian. Parsi or Jew by religion.......'. Such being the provisions Mr. Panda submits that a Christian is not entitled to inherit the properties of the Hindu. We are unable to accept the contention of Mr. Panda, Section 2 simply provides the class of persons whose properties will devolve according to Hindu Succession Act. [t is only the property of those persons mentioned in Section 2 that will be governed according to the provisions of the Act. This Section has nothing to do with the heirs. This Section does not lay down as to who are the disqualified heirs. Sections 24, 25, 26 and 28 lay down the provisions how a person is disqualified. Section 24 provides 'certain widows remarrying may not inherit as widows'. Section 25 disqualifies a murderer from inheriting the property of the person murdered. Section 28 provides that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other groundwhatsoever. The most important section is Section 26. Section 26 reads as follows:--

'Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.'

This Section therefore does not disqualify a convert. It only disqualifies the descendants of the converts who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives. Section 28 of the present Act discards almost all the grounds which imposed exclusion from inheritance and lays down that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity. It also rules out disqualification on any ground whatsoever excepting those expressly recognised by any provisions of the Act. The exceptions are very few and confined to the case of remarriage of certain widows. Another disqualification stated in the Act relates to a murderer who is excluded on principles of justice and public policy (Section 25). Change of religion and loss of caste have long ceased to be grounds of forfeiture of property and the only disqualification to inheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of such convert (Section 26). The disqualification does not affect the convert himself or herself. This being the position, we have no hesitation to hold that the respondent who is admittedly a brother of the deceased is entitled to succeed if there be no other preferential heir. It is now to be seen whether the appellant's case that he was adopted by Dr. (Miss) Naidu has any substance. The case as made out by the appellant in the Court of the Munsif is that he was adopted by Dr. (Miss) Naidu in 1949/50 when she was a lady doctor attached to Malda Hospital. If that be so, then it must be said that the so-called adoption took place at a time much before the Hindu Adoptions and Maintenance Act came into force. The above Act came into force on 21st of December 1956. Section 8 of the Act provides that

'Any female Hindu who is of sound mind, who is not a minor and who is not married or if married whose marriage has been dissolved or whose husband is deador has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind has the capacity to take a son or daughter in adoption'.

Under the law as previously applied no female including a wife or a widow could adopt a son to herself. After the death of the husband a widow could adopt a son in certain parts of India if he had expressly authorized her to adopt, and in other parts of India even without such authority. The right of an unmarried woman to adopt a son or daughter to herself was unheard of. If that be the legal position, the so-called adoption having taken place in 1949/50 that is long before the present Act came into force, we have no hesitation to say that at that time Dr. (Miss) Naidu had no power to adopt a son, and that being so, there was no legal adoption of the appellant by Dr. (Miss) Naidu. In such circumstances we do not find any necessity to send the case back to the learned Munsif for the purpose of determining whether the appellant is an adopted son or not. In view of our findings as above the orders passed by the learned Munsif and the learned Additional District Judge are set aside. The application filed by the respondent under Section 372 of the Indian Succession Act before the learned Munsif is allowed. The appeal is dismissed as being not maintainable. The application under Section 115 of the Code of Civil Procedure is also disposed of as above.

9. In view of our findings no separate order need be passed on the Rule and the Rule is disposed of. There will be no order for costs in the appeal, in the alternative application under Sec. 115 of the Code and Rule.

B.C. Ray, J.

I agree.


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