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2008 Supreme(Ori) 659
IN THE HIGH COURT OF ORISSA
Sanju Panda, J.
NILAMADHABA DEO AND ANOTHER - APPELLANT
Versus
JANAKA KUMARI DEVI - RESPONDENT
FA No. 76 of 2000
Decided On : 30-10-2008
Bidhayak Patnaik, S.K. Swain, B. Mohanty and S. Pani, for the Appellant; B.H. Mohanty, J.K. Bastia, B. Das, R.K. Nayak, T.K. Mohanty and S.C. Mohanty, for the Respondent
The absence of probate renders a Will ineffective, and normal succession rules apply. The amended Hindu Succession Act entitles a daughter to a share in ancestral property as a coparcener.
Headnote:
Probate - Partition of Ancestral Property - Hindu Succession Act - [Probate] - [Partition of Ancestral Property] - [Section 8 of Hindu Succession Act, 1956, Section 30 of Hindu Succession Act, 1956, Hindu Succession (Amendment) Act, 2005]
Fact of the Case:
The Plaintiff filed a suit for partition of ancestral property claiming a share from her mother's and father's property. The Defendants contested, claiming that a Will in favor of Defendant No. 1 extinguished Plaintiff's right to the property.
Finding of the Court:
The court found that the Will was not probated, and therefore, normal succession rules applied. The Plaintiff was entitled to a decree for partition and half share in the suit property as per the Hindu Succession (Amendment) Act, 2005.
Issues: Maintainability of the suit, entitlement to share from ancestral property, and applicability of the Hindu Succession (Amendment) Act, 2005.
Ratio Decidendi: The court held that the absence of probate rendered the Will ineffective, and normal succession rules applied. The Plaintiff, being a coparcener, was entitled to half share in the ancestral property as per the amended Hindu Succession Act.
Final Decision: The first appeal was dismissed, affirming the preliminary decree for partition in favor of the Plaintiff.
JUDGMENT :
Sanju Panda, J. - Challenge has been made in this appeal to the order dated 27.11.1999 passed by the learned Civil Judge (Senior Division), Bhubaneswar in T.S. No. 361 of 1994-1 decreeing the suit on contest against the Defendants and directing for partition of Schedule 'B' suit land within one month failing which the Plaintiff would be at liberty to partition the same by making the decree final through court.
2. The-brief facts of the case are as follows:
Defendants are the Appellants and Plaintiff is the Respondent herein. She instituted T.S. No. 361 of 1994-1 in the court of learned Civil Judge (Senior Division), Bhubaneswar for partition of the suit property. The property which is the ancestral property belongs to Harekrushna Harichandan Mohapatra who expired on 24.12.1980. His wife late Lavanya Kumari Devi predeceased him in the year 1978. He has only son Mahendra Narayan Deo and two daughters Janaki Kumari and Prema Manjari. Prema Manjari having been adopted to another family, Mahendra Narayan and Janaki Kumari remained as the successors in respect of the suit property. By the time the suit was filed, Mahendra Narayan was dead. His son and daughter are the Defendants. The claim of the Plaintiff is that the land appertaining to Khata No. 2 in mouza Malipada belongs to her mother and after her death she was entitled to get half share from the said land and one fourth share in respect of rest of the property. Her claim having been refused, she filed the suit for partition.
3. The Defendants filed their written-statement denying the averments made by the Plaintiff in the suit stating therein that Harekrushna Harichandan Mohapatra having executed a Will in favour of Defendant No. 1, the Plaintiff lost all her interest in the suit property and in view of existence of the said Will, the suit for partition would not be maintainable. Secondly, it was pleaded that the property under Khata No. 202 having been sold by mother Lavanya Kumari Devi, though her power of attorney holder who is non-else than the father of Defendant No. 1 himself, the suit property was not available for partition.
4. In order to determine the claim of the Plaintiff, the learned Civil Judge framed as many as seven issues which are as follows:
1. Whether the suit is maintainable?
2. Whether the Plaintiff has got cause of action to file the suit?
3. Whether the suit is barred by time?
4. Whether the Plaintiff is entitled to get 1/2 share from her mother's property as claimed by her and 1/3rd share from her mother's property as claimed by the Defendants?
5. Whether the Plaintiff is entitled to get 1/4 th share from her father's property ?
6. Whether the Plaintiff is entitled to the relief sought for?
7. To what other relief the Plaintiff is entitled ?
5. In support of her stand, the Plaintiff examined herself as P.W. l whereas Defendant No. 1 examined himself as D.W.l and exhibited a number of documents to substantiate their respective plea. The learned Civil Judge analyzing the materials available on record decreed the suit preliminarily on contest against the Defendants holding that the Plaintiff is entitled to 1/2 share from her mother's property and 1/4th share from her father's property and directed the Defendants to partition the 'B' schedule property within one month failing which the Plaintiff would be at liberty to partition the same by making the decree final through court.
6. The Learned Counsel for the Appellants submitted that the trial court committed an illegality without looking into the written statement that a Will was admittedly there to be probated in favour of Defendant No. 1 in respect of the property recorded in the name of Harekrushna Harichandan and the said Will was executed on 3.11.1980. Therefore, the properties should not devolve in accordance with Section 8 of the Hindu Succession Act and the Plaintiff should not inherit any property as per the said Act because Harekrushna Harichandan was not dead intestate within the meaning of 'inte
