DIPU KUMAR DAS vs BABUL HAZARIKA

Heard Mr. B Banerjee, learned Senior Counsel assisted by Mr. K Bhattacharyya, learned counsel for the appellant. Also heard Mr. D

Mozumdar, learned Senior Counsel assisted by Mr. KK Parasar, learned counsel for the respondent.

Originally Title Suit No. 392/2004 (old), 1049/2006 (new) was filed by one Rumi Hazarika, the wife of the present plaintiff/ appellant who was

substituted on the death of the said Rumi Hazarika against the present defendant/ respondent. Late Ratneswar Hazarika, the father of the original

plaintiff and the defendant/ respondent occupied the suit land measuring about 2K 10L covered by Dag No. 119, 131 of KP Patta No. 92 of

village Sahar Guwahati since 1940 as an occupancy tenant and upon abolition of the tenancy, Ratneswar Hazarika became the owner. Ratneswar

Hazarika constructed a residential house over the suit land which was repaired and renovated later on. On the death of Ratneswar Hazarika, the

original plaintiff Rumi Hazarika, the defendant/ respondent Babul Hazarika and another sister Smti. Debika Rani Hazarika inherited the suit

property. Dispute arose with the defendant/ respondent and as a consequence, the said property was divided into two equal shares. One of the

shares was being occupied by the defendant/ respondent and the other one by the original plaintiff, Rumi Hazarika and her mother (Bhubaneswari

Hazarika). The mother died prior to the institution of the suit and as such one of the shares was under the occupation of the said Rumi Hazarika.

After the death of the mother, defendant/ respondent started obstructing Rumi Hazarika in possessing the suit land. But she continued her

possession after her marriage with Dipu Kumar Das (the substituted plaintiff/ appellant). Owing to continuous obstruction and disturbance by her

brother, the original plaintiff had to institute a suit being Title Suit No. 222/2002 for permanent injunction against the defendant/ respondent. The

said suit though dismissed, but it was held that the suit land left behind by Ratneswar Hazarika was not partitioned between his legal heirs and

further held that the original plaintiff i.e. Rumi Hazarika was one of the cosharers of the suit land. As such, the original plaintiff instituted the suit for

partition of the suit land.

The defendant/ respondent appeared and contested the suit by filing written statement and counter claim raising the defence that the suit is

barred by res judicata in view of earlier Title Suit No. 222/2002. It is admitted that the original plaintiff is her sister and the suit land belonged to

their father Ratneswar Hazarika. Denying the claim of the original plaintiff, the defendant/ respondent pleaded that he is the exclusive owner of the

suit land and the plaintiff is trying to make forged document and as such, by preferring the counter claim he prayed for declaration of his title and

the eviction of the plaintiff from the suit land.

Original plaintiff filed written statement against the counter claim raising the plea of maintainability of the same and also denied the exclusive

ownership of the defendant/ respondent over the suit land.

During the trial before the court of learned Munsiff No. 1, Rumi Hazarika, the original plaintiff, the sister of the defendant/ respondent died

following which her husband, the present plaintiff/ appellant was substituted and continued the proceeding.

On the basis of the pleadings, the learned trial court framed the following issues:-

Whether the suit is maintainable in law?

Whether the suit is barred by the principle of res-judicata?

Whether the plaintiff is entitled to get the decree for partition?

The said suit was once dismissed vide judgment and decree dated 10.02.2009 and plaintiff/ appellant having preferred an appeal being Title

Appeal No. 27/2009, the said judgment was set aside and the suit was remanded with a direction to frame an additional issue which was later on

framed by the learned trial court as follows:-

Additional Issue:-

Whether the plaintiff entitled to partition of the suit land?

Issues framed on Counter-Claim:-

Whether the defendant is the absolute owner of the suit land and property?

Whether the defendant is entitled to get the decree as prayed for in the counter-claim?

After re-hearing the matter, the learned trial court passed the judgment and decree thereby dismissing the suit on the grounds that the present

plaintiff/ appellant has not inherited the suit property in view of the provisions of Sections 15 and 16 of the Hindu Succession Act, 1956

(hereinafter referred to as ''the Act, 1956) and allowed the counter claim for eviction of the plaintiff/ appellant from the suit land. It is pertinent to

mention here that the original plaintiff Rumi Hazarika died issueless.

Being aggrieved by the judgment and decree dated 14.02.2012 passed by the learned trial court, Title Appeal NO. 31/2012 was preferred by

the present plaintiff/ appellant which was also dismissed vide judgment and decree dated 28.02.2013. The said judgment and decree passed by

the learned first appellate court is put under challenge in this second appeal which was admitted on 11.02.2014 by framing the following substantial

questions of law:-

Whether the learned Courts below committed error in construing provisions of Sections 15 & 16 of Hindu Succession Act, 1956, in regard to

acquisition of tenancy right by the legal heirs of the plaintiff?

Whether on the basis of the exhibited documents the learned Courts below committed error by not granting the bona-fide partition to the plaintiff

under the relevant provision of Assam Land and Revenue Regulation, 1886?

Mr. Banerjee, learned Senior Counsel, submits that the learned courts below were wrong in dismissing the suit by holding that the plaintiff/

appellant cannot inherit the property insofar as the occupancy/ tenancy right in the light of Sections 15 & 16 of the Hindu Succession Act, 1956 is

concerned on the ground that neither Ratneswar Hazarika nor any one of his legal heirs were endowed with the right of ownership as required

under Section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (hereinafter referred to as ''the Act, 1971''). If the ownership has

not been declared in favour of either Ratneswar Hazarika or any one of his legal heirs, the question of partition cannot come into play as the said

Sections 15 & 16 of Hindu Succession Act, 1956 does not contemplate inheritance of acquisition of tenancy right by the legal heirs of the original

plaintiff, Rumi Hazarika. The said submission is made keeping in view of Section 5(3) of the Act, 1971 which stipulates that a person shall be

deemed to have continuously held land under a landlord notwithstanding that the particular landlord under whom he held the land was different at

different times provided the land held by him was the same. In the present case, the right of partition lies with the landlord and until and unless the

said right of tenancy merges with the right of landlord, the question of partition amongst the tenants does not arise at all. Referring Section 15 of the

Act, 1956, Mr. Banerjee submits that under the said provision, the property of a female Hindu dying intestate would firstly devolve upon the sons

and daughters and the husband. Thus, the husband is classified as a legal heir of the female Hindu dying intestate. Further, pointing to the Section

16 of the said Act, 1956, it is submitted that as per the order of succession, as per Rule 1 the property would devolve by way of succession on the

husband i.e. the plaintiff/ appellant. The learned courts below ought to have considered the same and granted the relief of partition to the plaintiff/

appellant and having not done so, committed error. Mr. Banerjee accordingly submits that the findings of the learned courts below are liable to be

set aside.

Mr. Mozumdar, learned Senior Counsel, for the respondent strongly objects to the submission made by Mr. Banerjee. It is his submission that

right to succession is governed by the said Act, 1956 inasmuch as the parties to the suit are Hindus. As the original plaintiff died issueless, Sections

15(2)(a) is specific that 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 not upon the other heirs referred to in sub section (1) in the orders specified therein but upon the heirs of the father. In the present

case in hand, admittedly after the death of Rumi Hazarika, the defendant/ respondent is the only legal heir of the father of Rumi Hazarika, the

original plaintiff. It is also not disputed that Rumi Hazarika died issueless. The said section covers any property including the tenancy right and the

learned courts below were correct in their findings and no interference is required by this court. In support of his submission, Mr. Mozumdar relies

on the case laws of V. Dandapani Chettiar v. Balasubramanian Chettiar (dead) & others reported in (2003) 6 SCC 633 and Rafique Ahmed v.

Assam Board of Revenue & others reported in (2016) 1 GLR 114.

Considered the submissions of the learned counsels appearing for the parties. In (2003) 6 SCC 633 (supra), the Hon''ble Apex Court almost

under similar facts as the one in the present case in hand explained the provision of Section 15 of the Hindu Succession Act, 1956 as follows:-

The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the

commencement of the Act. This section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified in

sub-section (1). Two exceptions, both of the same nature are engrafted by sub-section (2) on the otherwise uniform order of succession

prescribed by sub-section (1). The two exceptions are that if the female died without leaving any issue, then (1) in respect of the property inherited

by her from her father or mother, that property will devolve not according to the order laid down in the five Entries (a) to (e), but upon the heirs of

the father; and (2) in respect of the property inherited by her from her husband or father-in-law, it will devolve not according to the order laid

down in the five Entries (a) to (e) of subsection (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to the

property ?inherited? from the father, mother, husband and father in law of the female Hindu and do not affect the property acquired by her by gift

or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform

order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property

inherited by her from her father or mother, its operation in confined to the case of dying without leaving a son, a daughter or children of any

predeceased son or daughter.

Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a

predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited

from her father or mother, it would devolve as prescribed under Section 15(2)(a). If it is inherited by her from her husband or father-in-law, it

would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female

from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or

daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be

- if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would

revert back to the heirs of her father.

Section 5(7) of the Act, 1971 stipulates that if a tenant dies intestate in respect of a right of occupancy, it shall, subject to any custom descend

in the same manner as other immovable property. If the said provision is taken into consideration and considered the submission of Mr. Banerjee

that until and unless the right of tenancy merges with that of landlord, the tenants cannot sought for partition then it will go against the provision of

Section 5(7) of the said Act, 1971. The said provision stipulates that the right of occupancy shall descend in the same manner as other immovable

property. On the other hand, Section 15(2)(a) covers ''any property'', thus there being no such differentiation as to classification of property in the

said Act of 1956, it can be held that the tenancy right under the Act, 1971 is included within the term ''any property'' undisputedly.

The learned first appellate court while deciding the issue No. 3 and the additional issue, came to the finding that Section 15(1)(a) of the Act,

1956 though shows the husband as the legal heirs along with sons and daughters but Section 15(2)(a) created an embargo upon the right of

inheritance by husband in absence of son and daughter. Holding as such, the learned first appellate court came to the conclusion that the plaintiff/

appellant has not inherited anything through his wife as the suit property came to her from the paternal side. Accordingly, this court finds that the

courts below have not committed error in construing the provisions of Section 15 & 16 of the Hindu Succession Act, 1956 so far acquisition of

tenancy right by the legal heir of Rumi Hazarika is concerned.

In order to get a partition decree, the plaintiff must be able to show subsisting right of co-ownership along with the other co-owners of a

particular plot of land. The same is also recognised under regulation 97 of the Assam Land and Revenue Regulation, 1886 which stipulates that

every recorded land holder of a temporarily settled estate may, if he is in actual possession of the interest, in respect of which he desires partition,

claim perfect or imperfect partition of the estate. If we look into the pleadings of the plaint it is clear and apparent that the plaintiff/ appellant

pleaded that the tenancy Act ceased to operate in the urban area of Guwahati city and the parents of the parties to the suit even acquired the status

of the land holder by virtue of their continuous and prolonged possession. On the face of the said pleadings, it is submitted by the learned counsel

for the appellant that the learned courts below committed error by not granting partition to the plaintiff/ appellant under the provision of Assam

Land and Revenue Regulation, 1886. In fact, the original plaintiff, Rumi Hazarika, had she been alive then the court could have granted the relief of

partition. The pleadings as referred hereinabove in the plaint, show that the original plaintiff had inherited the status of purported land holder as

defined under the Assam Land and Revenue Regulation, 1886. But on her death owing to the affect of the Hindu Succession Act, 1956, more

specifically, Section 15(2)(a), the plaintiff/ appellant is not entitled to inherit the right, title and interest over the suit land to the extent his late wife

was entitled. If that be so, the present plaintiff/ appellant cannot claim any right over the share left behind by his late wife inasmuch as the said share

reverts back to the defendant/ respondent. Under such circumstances, the learned courts below did not commit any error by not granting the relief

for partition to the plaintiff/ appellant. Accordingly, both the substantial questions of law are decided against the plaintiff/ appellant and as a result,

this second appeal is dismissed.

Send back the LCRs.

No order as to costs.