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Roshan Lal and anr. Vs. Dalipa - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 17 of 1971
Judge
Reported inAIR1985HP8
ActsHindu Succession Act, 1956 - Sections 15, 15(1) and 16
AppellantRoshan Lal and anr.
RespondentDalipa
Appellant Advocate P.N. Nag (Absent), Adv.
Respondent Advocate Kapil Dev Sood, Adv.
DispositionAppeal dismissed
Cases Referred and Gurbachan Singh v. Khichar Singh
Excerpt:
- .....estate, if any, of pari. besides, according to the appellants, pari had limited interest in the suit land which was in lieu of maintenance and as such also the respondent could not claim title thereto by succession. the plea of estoppel was also set up on the basis that a mutation in respect of the suit land was effected as far back as 1959 in favour of the appellants but no objection was taken thereto by the respondent till the institution of the suit.3. the trial court held that : (1) the respondent was the son of pari, who was the widow of punnu, (2) it was not established that the interest of pari in the suit land was a limited interest in lieu of maintenance, (3) in any case, the interest of pari had matured into full ownership before she died in view of the provisions of section.....
Judgment:

P.D. Desai, C.J.

1. The appellants are the original defendants and the respondent is the original plaintiff. The suit, out of which this appeal arises, was instituted by the respondent for actual possession of a specified extent of land situate in Tikka Chamlehar, Mauza Thehar, Tehsil Kangra, District Kangra. The suit has been decreed concurrently by awarding symbolic joint possession. -Hence the present second appeal.

2. The case of the respondent was that he was the son of one Pari, widow of Punnu, who died intestate in Jan. 1959, leaving him behind as her sole heir. According to the respondent, she had l/36th share in four different holdings described in the plaint and the relief as to possession was based on his right to succeed to the land falling to her share in those different holdings. The suit was resisted by the appellants, who are the collaterals of Punnu, on the ground that the respondent was not the son of Pari, that he was the son of one Khitu and that, as such, he could not claim to succeed to the estate, if any, of Pari. Besides, according to the appellants, Pari had limited interest in the suit land which was in lieu of maintenance and as such also the respondent could not claim title thereto by succession. The plea of estoppel was also set up on the basis that a mutation in respect of the suit land was effected as far back as 1959 in favour of the appellants but no objection was taken thereto by the respondent till the institution of the suit.

3. The trial Court held that : (1) the respondent was the son of Pari, who was the widow of Punnu, (2) it was not established that the interest of Pari in the suit land was a limited interest in lieu of maintenance, (3) in any case, the interest of Pari had matured into full ownership before she died in view of the provisions of Section 14 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act), (4) the respondent was entitled to succeed to herestate in view of the provisions of Section 15(1)(a) of the said Act and (5) the plea of estoppel was without substance. The trial Court, therefore, decreed the suit. While passing the decree, however, the trial Court only awarded symbolic possession as a joint owner to the respondent in the suit land in view of the fact that Pari had only a share in the estate which was not separated by metes and bounds. The lower appellate Court confirmed the decree passed by the trial Court and dismissed the appeal.

4. The lower appellate Court relied upon the statement of deceased Punnu made before the revenue officers when mutation, Ex. P-5, was recorded wherein he acknowledged that the respondent was born to Parr while she was still married to Kithu, on account of his illicit relationship with her, as well as on the admission made by Sunku, deceased father of the appellants, and by one of the appellants (Budhi Singh) that the respondent was a Pichhlag son (step-son). The material finding is recorded by the lower appellate Court in the following words in para 9 of the judgment under appeal :

'Thus, from the above, it is fully established that the defendants have not been able to rebut the evidence of the plaintiff with regard to the fact, that he is the son of Smt. Pari. No matter, that he is Pichhlag but he is the son of Pari, whosoever might be his father.'

5. The finding in the aforesaid words would indicate that the lower appellate Court has found the respondent to be the Pichhlag son which, on the facts and in the circumstances of the case, means that he was the son of Pari born during her wedlook with Kithu but brought along with her to the house of Punnu with whom she is stated to have contracted a second marriage after the death of Kithu': The concluding words in the extracted portion 'whosoever might be his father', however, create some difficulty. Those words would indicate that the lower appellate Court had not reached a definite conclusion as regards the paternity of the respondent. Be that as it may, at this stage, I am not required to go into this question because, as i shall presently point out, so far as thesuccession intestate to the estate of Pari is concerned, it makes no difference whether the respondent was born in or out of her wedlock with Kithu.

6. Section 15 of the Act reads as under :

'(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,--

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(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 son 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; and

(b) any property inherited by a femaleHindu from her husband or from herfather-in-law shall devolve, in the absenceof any son or daughter of the deceased(including the children of any predeceased son or daughter) not upon theother heirs referred to in Sub-section (1) in theorder specified therein, but upon the heirsof the husband'.

7. The fact that Pari had an undivided share in the suit property and that on account of the operation of law her limited interest, if any, had matured into full ownership, is incapable of being disputed. It is also incapable of being disputed that such share was the property of Pari and that inheritance thereto is governed by Section 15 of the Act. Under Section 15(1)(a) read with Section 16, such property would devolve upon the respondent to the exclusion of all other heirs mentioned in Sub-section (1) ofSection 15. Since he is found to be the son of Pari, Sub-section (2) is not attracted in the instant case because the said sub-section would operate in the absence of any son or daughter of the deceased. For the purposes of succession to her estate under Section 15(1)(a) it is immaterial whether the respondent was the off-spring of the marriage of Pari with Kithu or of her illicit relationship with Punnu. In other words, it is immaterial whether he was the legitimate or illegitimate son of Pari (See : Rama Ananda v. Appa Bhima AIR 1969 Bom 205 (para-8) and Gurbachan Singh v. Khichar Singh AIR 1971 Punj & Har 240 (para-5)).

8. Under the circumstances, the Courts below were right in law in decreeing the suit. The appeal, therefore, fails and is dismissed with no order as to costs.


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