Mohinder vs Smt. Sukhdai and Others

N.K. Kapoor, J.—This is plaintiff''s regular second appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the defendants was accepted thereby dismissing the suit of the Plaintiff in toto.

Plaintiff filed suit for declaration to the effect that he is owner in possession of one half share in the land fully detailed in the headnote of the plaint. As per averments of the Plaintiff one Smt. Paran widow of Pala was owner of land. Smt. Paran died about five years back leaving behind the Plaintiff and Smt. Shanti as her heirs. According to the Plaintiff he is son of Smt. Chhanno daughter of Smt. Paran. Smt. Shanti is Paran''s daughter. With a view to deprive the plaintiff of his rightful claim Smt. Shanti in collusion with the revenue officials had got entered the mutation in her favour and had further sold away part of the property inherited to defendants No. 1 to 3. Since. Smt. Shanti had no right to sell away the specific numbers of the property in favour of defendants No. 1 to 3 they also be injucted from interfering in the possession of the plaintiff.

Resisting the claim of the plaintiff defendants No. 1 to 4 in their statement averred that Smt. Shanti is the sole surviving heir of Smt. Paran being her daughter. Defendants specifically denied that Smt. Chhanno was daughter of Smt. Paran. According to the defendants, plaintiff was not an heir of Smt. Paran and so had no title or interest in the property left by Smt. Paran. According to the defendants plaintiffs mother was Smt. Phullan, another wife of Richhpal @ Pala.

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

Whether the plaintiff is owner of 1/2 share of the suit land? OPP.

Whether the plaintiff is in possession of the land detailed in the headnote of the plaint? OPP.

Whether the suit is speculative, if so, to what effect? OPD.

Whether defendants No. 1 to 3 have taken possession of the suit land, as alleged in the written statement, if so, to what effect? OPD.

4-A. Whether plaintiff is entitled to possession as alleged in para No. 6. of the plaint? OPP.

4-B. Whether the suit is properly valued for the purpose of Court fee and jurisdiction? OPP.

Trial Court on the basis of evidence came to the conclusion that plaintiff is son of Smt. Chhanno, daughter of Smt. Paran and so decreed the suit to the extent of one half of the land left by Smt. Paran. Issue No. 2 was decided against the plaintiff. Issue No. 3 was decided against the defendant Issues No. 4 and 4-A were taken up together. Issue No. 4 was found in favour of the defendants and issue No. 4-A against the plaintiff. Under issue No. 4-B it was decided that the suit has been properly valued for the purpose of Court fee and resultantly the suit of the plaintiff was decreed to the extent that the plaintiff is owner of the 1/2 share in the land measuring 91 bighas and 2 biswas.

The Additional District Judge once again examined the controversy raised in the suit in the light of evidence led by the parties. According to the Additional District Judge the crux of the dispute pertains as to the determination of whether Smt. Chhanno was born from the womb of Smt. Phullan or Smt. Paran. The Additional District Judge after discussing the evidence led by the plaintiff thread bare came to the conclusion that Smt. Chhanno was daughter of Smt. Phullan, the first wife of Richhpal @ Pala and that the plaintiff is son of Smt. Chhanno as is the case of the plaintiff himself. Since the dispute relates to the succession of Smt. Paran in the presence of Smt. Shanti, her daughter, no other person succeed to her estate. Accordingly, the appeal of the respondent-defendant was accepted thereby dismissing the suit of the plaintiff.

Broad facts are not in dispute i.e. that Richhpal @ Pala had two wives, namely, Smt. Phullan and Smt. Paran. It is also not in dispute that plaintiff is the son of Smt. Chhanno, daughter of Richhpal from his first wife Smt. Phullan whereas Smt. Shanti, also a daughter of Richhpal, is from his second wife Smt. Paran. There is also no dispute between the parties that succession had opened on the death of Smt. Phullan in the year 1966. As per Section 14 of the Hindu Succession Act, Smt. Paran was absolute owner of the property. Section 15 deals with the general rules of succession in case of female Hindus, which reads as under:-

"15.(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 pre-deceased 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 female Hindu from her husband or from her father-in-law 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 husband.

As regards the order of succession and manner of distribution among heirs of a female Hindu, the same is governed by Section 16, which reads as:-

"16. The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate''s property among those heirs shall take place, according to the following rules, namely: Rule 1. - Among the heirs specified in Sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.

Rule 2. - xx xx xx

Rule 3. - xx xx xx."

A reading of the aforesaid provisions contained in Sections 15 and 16 makes it clear that in respect of a Hindu female dying intestate firstly, it devolves upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband and secondly upon the heirs of husband. As per Section 16 among the heirs specified in Sub section (1) of Section 15 those in one entry are to be preferred to those in the succeeding entry Examining in the light of the facts of the present case Smt. Shanti alone succeeds to the estate of her mother. Smt. Paran and none else and so the Additional District Judge rightly reversed the judgment and decree of the trial Court. Thus, finding no merit in this appeal, the same is consequently dismissed but without any order as to costs.