Baru and Others vs Ratia

N.K. Kapoor, J.—This is defendant''s regular second appeal.

Plaintiff and defendant are the sons of Kehru from two different wives. The name of the mother of plaintiff is Muthari whereas the name of mother of Baru is Dakhan. After the death of Kehru, Muthari performed Kareva marriage with Sheo Chand who was owner of 1/6th share in the land measuring 459 kanals 16 marlas. This share was inherited by Smt. Muthari and so she became owner of the land. She died in August, 1969. It so happened that the mutation was sanctioned in the name of the plaintiff and defendant in equal share. It is with a view to correct this error which crept in the register of mutation that the plaintiff filed a suit for possession claiming himself to be the full owner of the property left by Smt. Muthari, her mother.

The suit was contested by the defendant. According to him, Sheo Chand had a daughter named Dhampa. According to the defendant, on the death of Muthani, the whole of the property owned by her through her husband Sheo Chand had gone to Smt. Dhampa as she was the only heirs of Sheo Chand. It is further the case of the defendant that in a family settlement Smt. Dhampa had given the suit land to the defendant while the remaining share was given to the plaintiff.

On the pleadings of the parties, following issues were framed:

1/ Whether the plaintiff is sole-heir to the disputed estate left by Smt. Muthari, if so, to what effect? O.P.P.

2/ Whether the disputed estate was mutated in favour of Smt. Dhampa after the death of Smt. Muthari ? O.P.D.

3/ If issue No. 2 is proved, whether Dhampa had given the suit land to the defendant in a family settlement and if so to what effect? O.P.D.

4/ Whether the suit is beyond limitation? O.P.D.

5/ Whether the plaintiff is estopped from filing the suit by his own act and conduct? O.P.D.

6/ Whether the suit is bad for non-joinder of necessary parties? O.P.D.

7/ Whether the civil court has no jurisdiction-to try this suit? O.P.D.

8/ Relief

Under issue No.l the trial Court came to the conclusion that Smt. Muthari was full owner of the property as per Section 15 of the Hindu Succession Act and since she died intestate, this property devolves upon her as per Section 16 of the Act. The plaintiff being the only heir of Smt. Muthari, he was held to be the sole heir of Smt. Muthari. Issue No. 2 was decided against the defendant. Issue No. 3 was also decided against the defendant. Issue No. 4 was decided in favour of the plaintiff and against the defendant. Under issue No. 5, it was held that the plaintiff is not estopped from filing the present suit. Issue No. 6 was decided against the defendant, issue No. 7 was conceded by the defendant and so was decided against him. Resultantly, a decree for possession of the suit land was granted in favour of the plaintiff and against the defendant.

Before the appellate Court, finding of the trial Court in respect of issue No. 1 was only challenged. The appellate Court once again examined the evidence led by the parties in respect of issue No. 1. On carefully examining the evidence, the Court came to the conclusion that there is no proof on record that Smt. Dhampa had any share in the property of Smt. Muthari. Since, admittedly, plaintiff was the sole heir of Smt. Muthari, whereas Baru defendant was from the second wife Dakhan the Court came to the conclusion that the defendant had no tight to succeed to the estate of Smt. Muthari. So finding of the trial Court was upheld and the appeal was consequently dismissed.

Almost identical pleas have been raised which did not find favour with the Courts below. As per facts on record, Smt. Muthari performed kareva marriage with Sheo Chand and on his death inherited his property. She became full owner of the property in terms of Section 15 of the Hindu Succession Act and as per Section 16 of the Hindu Succession Act, Ratia being her son alone succeeds. The learned counsel has made reference to Section 12 of the Hindu Succession Act which reads as under :-

"12. Order of succession among agnates and cognates:-

The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with rules of preference laid down hereunder -

Rule 1 - Of two heirs, the one who has fewer or no degree''s of ascent is preferred.

Rule 2 - Where the number of degrees of ascent is the same or none, that heir is preferred who has -fewer or no degrees of descent.

Rule 3 - Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously."

This deals with the succession among agnates and cognates and prescribes rules for preference. This section has, in fact, no applicability to the facts of the present case. In the instant case, on the death of Sheo Chand, Smt. Muthari became full owner and, as per Section 15(1) of the Hindu Succession Act, and property was to devolve according to the rules set out in Section 16 i.e. (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband. In the present case, Ratia has been proved to be son of Smt. Muthari and so succeeds to the estate of his mother to the exclusion of all others.

Both the Courts on considering the evidence led as well as the statutory provision have rightly came to the conclusion that Ratia alone succeeds to the estate of Smt. Muthari. The appeal is wholly devoid of merit and is consequently dismissed.