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Khagendra Nath Ghosh and ors. Vs. Karunadhar Kala and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 476 of 1968
Judge
Reported inAIR1978Cal431,82CWN979
ActsHindu Succession Act, 1956 - Sections 4 and 28; ;Hindu Law
AppellantKhagendra Nath Ghosh and ors.
RespondentKarunadhar Kala and ors.
Advocates:S.P. Roychoudhury and ;Phani Bhusan Das, Advs.
DispositionAppeal dismissed
Cases Referred(Smt. Kasturi Devi v. Deputy Director of Consolidation). The
Excerpt:
- .....inheritance according to old hindu law and that bar has not been removed by the provisions of the hindu succession act. in that view of his finding, the learned munsif dismissed the suit. being aggrieved, the plaintiff preferred an appeal before the learned district judge, the appeal was heard by the learned additional district judge who reversed the findings of the learned munsif. he found that the learned munsif was right to hold that mirabala was unchaste during the lifetime of her husband. but the learned judge was of opinion that unchastity was no longer a bar to succeed to a husband's property according to the provisions of the hindu succession act. in that view of his finding, the learned judge decreed the suit. being aggrieved, defendants nos. 1, 4 and 7 have come up to this.....
Judgment:

N.C. Mukherji, J.

1. This is an appeal against the judgment and decree passed by Shri Amitava Dutta, Additional District Judge, 2nd Court at Alipore in Title Appeal No. 142 of 1966 dated 3rd Sept. 1966 reversing those of Shri B. Mahapatra, Munsif, 3rd Court at Sealdah, in Title Suit No. 68 of 1963 dated 21-12-1965.

2. Defendants Nos. 1, 4 and 7 are the appellants in this Court. The plaintiff brought a suit for declaration of title to the suit land and for recovery of possession and mesne profits. The case of the plaintiff is that the suit lands belonged to late Charu Chandra Ghosh, on whose death those devolved on his wife Mira Bala. The plaintiff purchased the suit lands by a Kobala dated 15-12-1962 from Mira Bala. On the following day when he went to possess the suit lands and to reap the paddy grown on them by Charu Chandra Ghosh, the principal defendants together resisted him on the plea that they had purchased the suit lands from pro-defendants. Hence, the suit. Only defendants Nos. 1, 4 and 7 contested the suit.

3. Their defence is that Mirabala became unchaste during the lifetime of her husband Charu Chandra Ghosh and left him. Under the circumstances, Mirabala could not inherit the property of her husband and the vendors of the principal defendants became his heirs of the suit lands and they later sold the suit lands to the principal defendants, the said sale being much earlier than the sale by Mirabala in favour of the plaintiff. The learned Munsif found on evidence that Mirabala was unchaste during the lifetime of her husband and he was of opinion that unchastity was a bar to inheritance according to old Hindu law and that bar has not been removed by the provisions of the Hindu Succession Act. In that view of his finding, the learned Munsif dismissed the suit. Being aggrieved, the plaintiff preferred an appeal before the learned District Judge, The appeal was heard by the learned Additional District Judge who reversed the findings of the learned Munsif. He found that the learned Munsif was right to hold that Mirabala was unchaste during the lifetime of her husband. But the learned Judge was of opinion that unchastity was no longer a bar to succeed to a husband's property according to the provisions of the Hindu Succession Act. In that view of his finding, the learned Judge decreed the suit. Being aggrieved, defendants Nos. 1, 4 and 7 have come up to this Court.

4. Mr. Syama Prosanna Roychowdhury, learned advocate appearing on behalf of the appellants, is fair to sav that as both the courts have concurrently found that Mirabala was unchaste during the lifetime of her husband, he cannot challenge that finding of fact in this appeal. As regards the point of law involved in this case, Mr. Roychowdhury with much emphasis contended that the learned court of appeal below was wrong to hold that unchastity was not a bar according to the provisions of the Hindu Succession Act. Mr. Roychowdhury places before me the provisions of Section 4(1)(a) of the Hindu Succession Act. The said section reads as follows:-- 'Save as otherwise expressly provided in this Act any text, rule, or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect in respect of any matter for which provision is made in this Act'. Mr. Roychowdhury submits that Ss. 24, 25 and 26 enumerate the grounds of disqualifications from inheritance. Again, 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 ground whatsoever. It is contended by Mr. Roy Chowdhury that the expression 'on any other ground whatsoever' mentioned in Section 28 must be such ground analogous to disease, defect or deformity. According to Mr. Roychowdhury there is no specific provision in the Hindu Succession Act by which the disqualification to inherit on the ground of unchastity can be said to have been removed. It is the admitted position that unchastity of a widow was a bar to inherit the property of her husband. That bar, according to Mr. Roychowdhury, has not been removed by any specific provision of the Hindu Succession Act and that being so, on reading Ss. 4 and 28 together it must be said that unchastity of a widow is still a bar to inherit her husband's property. Exactly on this point, there is a Bench decision of Madras High Court reported in : AIR1972Mad357 (Jayalakshmi Ammal v. T. V. Ganesa Iyer). Their Lordships considered the effect of Section 28 read with Section 4 of the Act and were of opinion that unchastity of a widow has ceased to be a disqualification for succession after the Hindu Succession Act came into force. Their Lordships distinguished the Full Bench decision of the Madras High Court (Ramaiya v. Mottayya), : AIR1951Mad954 . In that case, the learned Judges had to consider whether unchastity was a bar according to Hindu Women's Right to Property Act. It was held that a Hindu married woman living in adultery at the time of her husband's death was disqualified by reason of her unchastity from acquiring any interest under the Hindu Women's Right to Property Act, This was upon the view that the Act conferred only a benefit upon a widow. But that did not mean that sui juris the Act meant to abrogate the rule of Hindu Law relating to the disqualification of a widow to succeed on the ground of unchastity. Their Lordships also considered the provisions of Ss. 2 and 3 of the Hindu Women's Right to Property Act and came to the conclusion that the position of the Hindu Succession Act is entirely different from that under the Hindu Women's Right to Property Act. It has been laid down 'The Hindu Succession Act, in so far as it covers the matters therein, is meant to be a complete Code relating to Hindu Succession and to that extent the Act prevails and the Hindu Law in respect of it will cease to operate. That is the effect of Section 4 which, as we said, gives the provisions of the Act an effect of overriding the Hindu Law except to the extent save as otherwise, expressly provided for in the Act itself. By Ss. 24 to 26, the Hindu Succession Act has provided the disqualifications which debar a heir from succeeding. Section 28 makes it manifest 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 the Act, on any other ground whatsoever. That means, in our opinion the Act has made its intention specific that unchastity of a widow will, after the Act came into force, no longer be a disqualification for her to succeed'. In AIR 1976 Cal 356 (Chandi Charan Naskar v. Bhagyadhar Mondal), R. Bhattacharya, J., relying on the Bench decision of Madras High Court, referred to above held that an unchaste widow is not debarred from inheriting her deceased husband. An interpretation of Section 26, as well as other sections of the Hindu Succession Act were matters of decision in a Bench decision of this Court, reported in : AIR1976Cal272 (Asoke Naidu v. Raymond S. Mulu). In that case, myself sitting with B. C. Ray, J., observed as follows:-- '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 ground whatsoever.' It was further held '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).' Mr. Roychowdhury relies very much on a Supreme Court decision reported in : [1977]2SCR25 (Smt. Kasturi Devi v. Deputy Director of Consolidation). The question before their Lordships was whether an unchaste mother would be disentitled from inheriting the property of her son. It was held by the learned Judges that the Hindu Law did not provide that the mother would be disinherited if she remarried. In the case before their Lordships, it was held that inheritance would be governed by the provisions of the Hindu Succession Act. Mr. Roychowdhury relies on certain observations of their Lordships, namely. 'We will, however, assume for the sake of argument that as wife of Madhua, Kasturi might be divested of her interest on her marriage with Lekhrai. It is plain, however, in this case that the dispute arises over the property of Karua and qua Karua's property, Kasturi claimed inheritance not as a widow of her husband Madhua but as the mother of Karua. The Deputy Director of Consolidation seemed to think that the bar of inheritance would apply to a mother as much as to a widow and on this ground he refused to accept the claim of the appellant. Learned counsel of the respondents supported the stand taken by the Deputy Director of Consolidation. We are, however, unable to agree with the view taken by the Deputy Director of Consolidation which appears to be contrary to the written text of the Hindu Law.' Their Lordships then referred to Mullas Hindu Law 14th Edn. p. 116. 'Un-chastity of a mother is no bar to her succeeding as heir to her son, nor does remarriage constitute any such bar.' Their Lordships further observed 'our attention has not been invited to any text of the Hindu Law under which a mother could be divested of her interest in the property either on the ground of un-chastity or remarriage'. Their Lordships in the said case were concerned only with the question whether as unchaste mother could succeed to the property of her son. Their Lordships found that in the old Hindu Law there was no such bar for an unchaste mother to succeed to the property of her son. Mr. Roychowdhury places his reliance on the following observations of the learned Judges -- 'We feel that the application of bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband. After the marriage, the wife becomes an absolute partner and an integral part of her husband and the principle on which she is excluded from inheritance on remarriage is that when she relinquishes her link with her husband even though he is dead and enters a new family, she is not entitled to retain the property inherited by her. The same, however, cannot be said of a mother. The mother is in an absolutely different position and that is why the Hindu Law did not provide that even the mother would be disinherited if she remarried.' These observations, in my opinion, only show that the learned Judges were noting the distinction that existed in the Hindu Law in the position of an unchaste widow and an unchaste mother. Their Lordships were not required to consider the provisions of the Hindu Succession Act and their Lordships have not said a word that the bar of unchastity of a Hindu widow has still been kept by the provisions of the Hindu Succession Act. This decision, therefore, is no authority for the argument advanced by Mr. Roychowdhury that as there is no specific provision in the Hindu Succession Act whether unchastity of a widow will be a bar for her inheriting the husband's property the provisions of the old Hindu Law will continue. Reading the different provisions of the Hindu Succession Act and specially Ss. 4 and 28 there is no doubt that except the disqualifications mentioned in Ss. 24, 25 and 26 any other disqualification which existed in the Hindu Law has been removed by the Hindu Succession Act. As unchastity of a widow has not been mentioned as a disqualification in Ss. 24 to 26, it must he held that the unchastity is no longer a disqualification. I therefore, agree with the opinion expressed by the learned Additional District Judge. The contention raised by Mr. Roychowdhury fails.

5. In the result, the appeal is dismissed. There will be, however, no order for costs in this appeal.


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