Tulsi Mahto & Ors vs Sulochna Devi & Ors

Gautam Kumar Choudhary, J

This is plaintiff’s second appeal against judgment of reversal in Title Appeal No. 21/1990 thereby reversing the judgment and decree passed in in Partition Suit No. 21 of 1987/19 of 1989.

Parties for convenience shall be referred to by their original placement in the suit and shall include their heirs and legal representatives at different stages.

CASE OF PLAINTIFF

Plaintiffs/Appellants filed suit for partition with respect to the property detailed in Schedule A.

Plaintiffs and defendants are the heirs and descendants of common ancestors Banno Mahto, a recorded tenant who died in the year 1935 leaving behind two sons Lagnu Mahto and Paras Nath Mahto. Both inherited and came in joint possession over the land of their father. Lagnu Mahto died in the year 1957 leaving behind three daughters Salkho, Murti and Surti whereas Paras Nath Mahto died leaving behind his only son Suraj Nath Mahto. Both the parties remained in joint possession over the suit land.

After death of Laganu Mahto, his daughter viz Murti remained in Naihar and came in possession over the land left by her father and by paying rent to the State are in continuous possession of the land in question.

Most Murti filed one Partition Suit No.59/65 which was dismissed for default and the matter was amicably settled between the parties. Murti transferred 3.20 acres of land in Khata No. 8 by registered sale deed dated 28.12.1972 to her sons who are plaintiffs nos.1 to 4.

Plaintiff have half share in the Schedule A land for which the suit was filed.

CASE OF DEFENDANT

The case of the defendant nos. 1 and 3 who have filed joint written statement is that admittedly Banno Mahto was common ancestor in whose name the suit land was recorded. The said land was acquired before the last cadastral survey.

Lagnu Mahto and Paras Nath Mahto both pre-deceased their father Banno Mahto. Lagnu Mahto died first prior to the last cadastral survey. Parasnath Mahto died leaving behind two sons namely Defendant no.1 and another son Radhanath Mahto some times in the year 1912-13 and Banno Mahto died in the early 1920.

Banno Mahto being grand father married daughters of Lagnu, in his own life time and they settled in their respective matrimonial homes.

The two sons of Banno Mahto, lagnu Mahto and Parasnath Mahto never came in joint possession of the suit property after his death and that Lagnu Mahto did not die after 1957.

Daughters of Lagnu Mahto never came in possession of the suit land as after their marriage they settled in their sasural.

Defendants were unaware about the sale deed executed on 26.12.72 by Murti Devi in favour of her sons plaintiffs no. 1 to 4 with respect to some lands under khata no.8. With regard to mutation pursuant to the sale it is pleaded that Plaintiffs in collusion with the Anchal Staffs and without order of competent authority obtained some rent receipts in their own name.

Suit land was not in joint, but in exclusive possession of the plaintiffs.

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

VI. Whether the plaintiffs had acquired title and possession over the suit land?

VII.  Whether the Lagnu Mahto died in the year 1957 or not?

Learned trial Court noted that issue of inheritance claimed by the Plaintiffs turned on the question whether Lagnu Mahto died before or after 1956. If he died after coming into force of the 1956 Act, his interest devolved by inheritance on his daughters who were class I heirs in terms of Section 8 of the Act.

In the absence of any documentary evidence in support of date of death, oral evidence relied and death of Lagnu was held to have taken place after 1956. The plaintiff(s) being the heirs and descendants as well as daughter of Lagnu Mahto inherited the suit property was Class-I heir under Section 6 read with Section 8 of the Hindu Succession Act. Consequently, the issues were answered in favour of the plaintiff and decreed the suit.

The First Appellate Court reversed the judgment by holding that plaintiff(s) failed to prove that Lagnu Mahto died in the year 1957 and further the plaintiff(s) were also not in possession of the suit property.

The second appeal has been admitted to be heard on the following substantial question of law.

I. Whether the Court of Appeal has erred in law in reversing the judgment, particularly Lagnu Mahto had died in 1957?

II. Whether the Court of Appeal has failed to appreciate the provisions of Section 8 of the Hindu Succession Act?

Part of genealogy not disputed is as under :

Plaintiffs are from the line of Lagnu Mahto and defendants from that of Paras Nath Mahto. Plaintiff’s claim for inheritance is contested by the defendants principally on the ground that Lagnu died before 1956 leaving behind three daughters, who did not succeed to the property of Lagnu which devolved on the heirs of his brother by survivorship.

The argument advanced on behalf of the appellant(s) is two folds. Firstly, the Appellate Court has not assigned reasons for setting aside the finding of fact regarding the year of death of said Lagnu Mahto.

After Act, 1956 when females were made class-I heirs and could have well succeeded to the property of her father in terms of Section 8 of the Hindu Succession Act, therefore it was incumbent on the part of the defendant to rebut the pleading and evidence led by the plaintiff that death was after the Year, 1956.

The second limb of argument is based on ratio laid down by Supreme Court in the case reported in 2022 (11) SCC 520 where in, it is argued that in a similar matter, regarding the right of a female to inherit the property of her father who died before 1956, it has been held that the daughter had right to inherit her father’s property even before coming into force of the said Act, 1956 and with regard to her father’s own separate property and not the joint family property.

Partition Suit has been filed in the year 1987 after coming into force Hindu Succession Act, 1956 and onus to prove the fact that death took place before 1956 is on the party(s) who intend to deflect the normal course of succession as per the said Act, 1956.

It is submitted by learned counsel on behalf of the respondent(s) that learned First Appellate Court has assigned specific reasons for returning finding that said Lagnu Mahto died much before the year 1956. The finding of fact has been recorded on the basis of deposition of P.W.4 who was 85 years old at the time of his deposition. He deposed that Lagnu Mahato died 10 to 15 years before Paras Nath Mahato died and at the time of death of Paras Nath Mahato, P.W.4 was about 6 to 7 years old. It is further argued that from this, it will be apparent that Paras Nath Mahato died sometime in the year 1910-11 and said Lagnu Mahto had died before him and he had never seen Lagnu Mahto. Deposition of P.W.5 and P.W.6 is on the same line.

Once it is accepted that death occurred before 1956, in view of the findings of the First Appellate Court and also that it was a joint family property, the plaintiff(s) who is admittedly the daughter of Lagnu Mahto cannot be regarded as coparcener, to claim the right of inheritance in the said property before coming into force of the Act, 1956. It is argued that finding of facts returned by the first appellate court cannot be unsettled in a second appeal. Reliance is placed on Civil Appeal 805 of 2021 vide judgment dated 12.03.2021 [Mallanagudda and Ors. Vs. Ninganagouda and Ors.].

FINDING

There cannot be any two view regarding the legal proposition advanced on behalf of the appellant, that unless the finding of facts are perverse, the same cannot be set aside in second appeal. In the present case the learned first appellate Court has assigned good reasons for returning finding of fact regarding the death of the Lagnu Mahto much before coming into force of the 1956 Act. Therefore, there is no infirmity in finding of fact of the 1st appellate Court and the first substantial question of law is accordingly decided in favour of the defendant.

The suit is for partition and not for declaration of title and therefore matter for consideration is whether there existed unity of title and possession over the suit property, after the death of common ancestors.

It is not in dispute that Banno Mahto was the common ancestor who had two sons Lagnu and Panrasnath. Lagnu had three daughters. Plaintiffs are the heirs and descendants of one of the daughter namely Murti.

In order to answer the second substantial question of law, and to consider the import of death of Lagnu Mahto before coming into force of the 1956 on the right of inheritance of his daughters, it will be appropriate to briefly revisit women’s right to property as it has evolved till the coming into force of the Hindu Succession Act (Amendment) Act, 2005. Law can be summed up as under:

I. Before the coming into force of Women’s right to Property Act,1937 widow of a coparcener was not entitled to inherit the interest of the coparcener and it devolved by survivorship on the joint family. She was however entitled to maintenance under Shastric laws. She was entitled to maintenance out of her husband’s property, but was not a coparcener.

II. The impact of the Hindu Women's Right to Property Act, 1937: Section 3. Devolution of property.—

(1) ******

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.

III. The limited estate was confined to a widow of the deceased coparcener, and did not extend to his married daughter.

IV. It has been held in Potti Lakshmi Perumallu v. Potti Krishnavenamma [Potti Lakshmi Perumallu  v.  Potti Krishnavenamma, 1964 SCC OnLine SC 35 : AIR 1965 SC 825] that a widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener; though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property. She has still power to make her interest definite by making a demand for partition, as a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition on her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband.

V. After coming into force of the Hindu Succession Act, 1956 the limited estate of the widow got transformed into absolute ownership in terms of Section 14 of the Act. Earlier, the rule of survivorship applied, and on death of the last in male line, his property devolved by survivorship on the other coparcener of the joint family. However, for maintenance if the female was in possession of specific property, she became absolute owner thereof. (Refer to Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, 1958 SCC OnLine SC 18)

VI. Further, after coming into force of the 1956 Act, daughter and wife being class I heir became entitled to the right of inheritance to the interest of the coparcener in the joint family property after his death in terms of Sections 6 and 8 of the Act. If the property of a male Hindu dying intestate was his self-acquired property, or, obtained in partition of coparcenary property, the same to devolve by inheritance and not by survivorship and daughter of such male Hindu shall be entitled to inherit the said property under Section 6 of Hindu Succession Act, 1956.

VII. After the 2005 Amendment Act, under Section 6 daughter was admitted to coparcenary like son. However, Proviso to this Section protected any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

Had Lagnu died leaving behind his widow then the argument advanced on behalf of the appellant would have been sustainable that after his death, widow inherited limited interest in the joint family property, and with coming into force Hindu Succession Act, it blossomed into full ownership right over the property.

In the present case since Lagnu died much before the coming into force of the Act,1956 leaving behind his daughters who had neither limited interest, nor were coparceners, therefore, his interests devolved by survivorship on the reversionary heirs.

It has not been disputed in the WS that plaintiffs have not been residing after constructing their houses in khatiyani lands of Banno Mahto. Transfer of property by sale and mutation in the revenue records the name of the purchaser and accepting him to be tenant are evidence of possession. Exhibit-2 which is sale-deed executed by Murti who happens to be the daughter of Lagnu in favour of her son and others by registered deed of sale executed on 28.12.1972. After the said sale, the land in question was duly mutated in the name of the purchaser and rent receipts were issued in favour of the purchasers and the same has been adduced into evidence and marked as Exhibit- 1 series. In Para-10 of the learned first appellate court’s judgment, finding has been returned that they were in possession of the suit land.

The defendants have not challenged the sale-deed. The continued possession over the suit property since the life time of Lagnu Mahto which is a residential house and homestead as admitted by D.W.4 (Murti Mahato) at Para-6 of her cross-examination, refutes the defendant(s)’ case that Murti, daughter of Lagnu Mahto after her marriage was residing in her matrimonial home outside the said village and was not in possession of the suit property.

Fact of the present case is distinguishable from the (2022)11 SCC 520 relied upon on behalf of the appellant, as the authority relied upon is with regard to the right of inheritance of widow or daughter in the self-acquired property of the father who died before 1956 and not a claim over joint family property. In the present property was originally recorded in the name of common ancestor Banno Mahto and the suit is for partition.

Evidence of possession in favour of daughter may be an evidence of possessory title over the suit property, but this cannot be accepted as an evidence of unity of title and possession with the defendants. After the death of Lagnu Mahto before 1956, his interest devolved by survivorship and not by inheritance. Factum of earlier partition suit filed in the year 1965, conveyance of property by Murti through registered sale deed are all evidence of cesser of the joint family status which took place much before coming into force of the 2005 Amendment in Section 6 of the HSA.

This Court is of the view that Section 8 will have no application in the present case, as Lagnu died much before coming into force of the HSA. Second substantial question of law is accordingly answered in favour of Defendant/Respondent.

Second Appeal stands dismissed with cost.

Pending I.A., if any, stands disposed of.