Radhabai Died and deleted Mohan Lal Yadav and Others vs Phulkunwa bai, Shyambai, Banninbai and Collector Raipur

Mr. T.P. Sharma, J.—I.A. No.8 for taking documents on record is dismissed summarily.

By this second appeal u/s 100 of the CPC the appellants have challenged legality and propriety of the judgment & decree dated 22.11.1995 passed by the 6th Additional District Jude, Raipur, in Civil Appeal No. 47-A/94, reversing the judgment & decree dated 29.3.94 passed by the Civil Judge Class-II, Gariyaband, in Civil Suit No. 11-A/88, dismissing the suit for declaration, injunction and possession filed on behalf of the respondents against original defendant Baishakhu.

The present second appeal has been admitted for consideration on 8.1.96 on the following substantial question of law:-

Whether under the facts and in the circumstances of the case the courts below were justified in holding that Vaishakhu did not succeed to the property under the will dated 7-6-79?

As per plaint allegation, the property in dispute total area 2.886 hectares situate at village Kodobatar, tahsil Bindranawagarh, district Raipur was owned by Leelabai given to her daughter Phulmat, who was issueless, for her livelihood who died in the year 1981-82. Respondents No. 1 and 2 are daughters of Leelabai and respondent No. 3 is granddaughter of Leelabai, Baishakhu was husband of Phulmat and Radhabai is sister of Baishakhu. Phulmat was having limited right over the suit property. After death of Phulmat her husband has not returned the possession of the property to legal heirs of Leelabai. Therefore, suit was filed on behalf of the respondents.

Original defendant Baishakhu has resisted the claim and has specifically pleaded that the property was owned by Harchand, first husband of Leelabai. After death of Harchand, Phulmat and Leelabai inherited the property. After death of Harchand, Leelabai married to another person Goverdhan and present respondents No. 1 and 2 are daughters of Leelabai through Goverdhan and not through Harchand. Partition took place and disputed property was allotted to Phulmat, who has executed will in favour of Baishakhu, Baishakhu has executed will in favour of Radhabai. After providing opportunity of hearing to the parties, the Civil Judge Class-II, Gariyaband has dismissed the suit which has been reversed by the lower appellate Court.

I have heard learned counsel for the parties, perused the judgment and decree impugned, judgment & decree of the trial Court and records of the Courts below.

Learned counsel for the appellants submits that property was originally held by Harchand, father of Phulmat and husband of Leelabai who died in the year 1920. After death of Harchand Leelabai remarried with Goverdhan and Phulkunwa and Shyambai are daughters of Leelabai through Goverdhan. Plaintiff Bannin is daughter of Kawal Singh, son of Leelabai and Goverdhan i.e. not heir of Harchand. Partition took place between Leelabai and Phulmat, disputed property was given in share of Phulmat, Phulmat executed will in favour of her husband Baishakhu who executed will in favour of Radhabai. Learned counsel further submits that Phulmat was absolute owner of the property which was in her possession who died in the year 1979 as testamentary succession or non-testamentary succession, property left by Phulmat was inherited by her husband Baishakhu u/s 15(1)(a) of the Hindu Succession Act, 1956 (for short `the Act, 1956''), although they have proved execution of will by Phulmat in favour of Baishakhu and second will by Baishakhu in favour of Radhabai, but even in absence of will after death of Phulmat even in case of property inherited from her father it will not return back to any person i.e. legal heirs of her father in absence of any surviving heirs. Leelabai was not alive, appellants are not heirs of Harchand, thereafter after death of Phulmat, Baishakhu became absolute owner of the property left by Phulmat. After death of Baishakhu his sister Radhabai inherited the property as testamentary succession even in absence of proof of will. She will inherit the property as heirs shown in sub-clause II of clause (b) of the Schedule appended to Section 8 of the Act, 1956 as sister of Baishakhu.

On the other hand, learned counsel for respondents No. 1 to 3 opposes the appeal and submits that property left by Harchand was absolute property of Leelabai, Phulmat was having limited ownership. After death of Phulmat it would return back to male heirs of Leelabai i.e. Kawal Singh and death of Kawal Singh, his daughter respondent No. 3 will succeed property.

As per documentary and oral evidence, both the parties have failed to prove the fact that Leelabai or Phulmat was holding the property under limited right. Property was in possession of Phulmat who died in the year 1979. Even in case of inheritance from Harchand, Phulmat became absolute owner of the property. After her death her husband Baishakhu has inherited the property. After death of husband of Phulmat, on the ground of testamentary succession or non-testamentary succession Radhabai was entitled to inherit the property in terms of sub-clause (b) of class II of the Schedule appended to Section 8 of the Act, 1956, Radhabai has inherited the property left by Phulmat, therefore, by decreeing the suit in favour of the respondents, the lower appellate Court has committed illegality.

For the foregoing reasons, the appeal deserves to be allowed and is hereby allowed, judgment & decree passed by the lower appellate Court are hereby set aside and judgment & decree passed by the trial Court are hereby restored.

Parties shall bear their own cost.

Advocate fees, if certified, as per schedule or to the extent certified, whichever is less.

Decree be drawn accordingly.