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2014 Supreme(Ori) 349
HIGH COURT OF ORISSA, CUTTACK
RAGHUBIR DASH, J.
Laxmidhar Sahoo & Another – Appellants
Versus
Batakrushna Sahoo – Respondent
R.S.A. No. 105 of 2013
Decided On : 03.11.2014
For Appellants: M/s. Bidhayak Patnaik, S.K. Swain & B. Rath.
For Respondent: M/s. Mahitosh Sinha & P.K. Mahali.
Headnote:1. HINDU SUCCESSION ACT, 1956 - Sec. 15 -If a Hindu female dies intestate without leaving any issue then the property inherited by her from her father or mother would go to the heirs of her father whereas the property she has inherited from her husband or her father-in-law would go to the heirs of her husband.
2. HINDU SUCCESSION ACT, 1956 – Sec. 15(1) - If a female Hindu dies intestate leaving behind any issue, the exception contained in Sub-section (2) of Section 15 of the Act will not come into operation and it is the ordinary rule of succession contained in Sub-section (1) of Section 15 of the Act that will govern the field.
Section 15 (1) lays down the ordinary rule of succession, sub-section (2) which starts with a non-obstante clause carves out two exceptions: (i) if the female dies without leaving any issue, then the property inherited by her from her father or mother would devolve not according to the general rule laid down in sub-section (1) but upon the heirs of her father, and (ii) if the female dies without leaving an issue, the property inherited by her from her husband or from her in-laws would devolve not according to the general rule laid down in subsection (1) but upon the heirs of the husband. (Para -12)
3. HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - Secs. 6 and 12 - Interest of a minor in the joint family property is kept outside the ambit of Secs. 6 arid 12 of the Act- In respect of minor’s undivided interest in joint family property the natural guardian of the minor can deal with it in accordance with the Hindu Law. (Para - 16)
JUDGMENT
RAGHUBIR DASH, J.
1. This Second Appeal is against the judgment and decree dated 14.12.2012 and 27.12.2012, respectively, passed by the learned District Judge, Khurda in R.F.A. No. 44 of 2007 confirming the judgment and decree dated 11.05.2007 and 21.06.2007, respectively, passed by the learned Civil Judge (Senior Division), Bhubaneswar in T.S. No. 152 of 1994-I.
2. Defendant Nos. 2 and 3 have preferred this appeal. Respondent herein is the plaintiff before the trial court. Defendant No.1 Late Kumar Sahoo, the adoptive father of plaintiff-Respondent, having died during pendency of the First Appeal his name was allowed to be deleted. In this judgment the parties will be addressed as per their respective nomenclature in the plaint.
3. Facts admitted by the parties are that plaintiff is the adopted son of D-1 and his wife Late Ahalya Sahoo who has passed away on 24.12.1993, that said Ahalya Sahoo was the only daughter of Late Arta Sahoo and Late Nishamani, that the suit immovable property described in Lot No.1 of the plaint schedule was partly purchased in the name of Ahalya Sahoo by her parent and part of it is inherited by her from her mother, Nishamani, that after the death of Ahalya, her adopted son (plaintiff) went to his maternal uncle’s house to be taken care of during his minority, that plaintiff’s adoptive father (defendant No.1) alienated the plaint schedule Lot No.1 property to defendant Nos.2 and 3 under Registered Sale Deed No. 5437 dated 28.12.1993, just 4 days after the death of Ahalya and during minority of the plaintiff.
The plaintiff filed the suit inter alia for a declaration that the Registered Sale Deed No. 5437 dated 28.12.1993 is not binding on him and no title has passed on to the vendees (D-2 and D-3) under the sale deed.
4. Plaintiff’s case, in short, is that the suit immovable properties were inherited by her mother from her parents and, therefore, in the presence of the plaintiff, the property did not devolve upon Ahalya’s husband (D-1). Further case is that D-1 had no right, title and interest in the suit immovable properties and, therefore, the sale deed executed by him cannot convey any title to D-2 and D-3. The plaintiff has also taken the stand that D-2 and D-3 could manage to obtain a sham sale deed inasmuch as the execution of the deed was not the mental act of D-1.
5. The defendants filed a joint written statement denying the allegation that the Registered Sale Deed is a sham deed. They have asserted that D-1 was the karta of the family consisting of his wife, his son and he himself. After death of his wife, D-1 was providing all financial help to his minor son, who was staying in his maternal uncle’s house to get education. D-1 alienated the suit immovable properties for legal necessity, i.e., to meet expenses for Shraddha ceremony of Ahalya and to construct a house. The sale transaction was for a consideration of Rs.50,000/- paid to D-1 and it was followed by delivery of possession. Ever since the transfer of the land, D-2 and D-3 have been in possession thereto. It is also claimed that after death of Ahalya the suit property devolved upon the plaintiff and D-1 simultaneously as per the provision contained in Section 15(1)(a) of the Hindu Succession Act, 1956 (for short, the Act).
6. Both the learned courts below have held that since Ahalya died leaving behind a son and the source of inheritance is her parent, the rule of succession would be governed by Section 15(2)(a) of the Act and, accordingly, the suit immovable property would devolve upon her son to the exclusion of her husband. On behalf of the appellants it is argued that learned courts below have misconceived the scope of Section 15(2)(a) of the Act, inasmuch as Ahalya having died leaving behind a son, the general rule of succession laid down under Section 15(1)(a) read with Section 16(1) of the Act would govern the field and both the son and the husband would succeed simultaneously.
7. The Second Appeal has been admitted on
