A pre-Act daughter cannot inherit her father's interest in joint family property if he died before the Hindu Succession Act's enactment; succession rules under Hindu law only confer limited interests.

ORDER :

S. Muralidhar, CJ.

1. The present appeal is directed against a judgment dated 29^th September, 2014 passed by the learned Single Judge allowing OJC No.5688 of 1998 filed by Respondent No.1, Kasinath Nayak @ Mohapatra, challenging an order dated 2^nd May, 1997 passed by the Commissioner, Consolidation, [CC] Cuttack in Revision Case No.1897 of 1995 whereby it was held that the predecessor in interest of the present Appellants, Nisamani Nayak (since deceased) was entitled to inherit her father’s property through her mother under the Hindu Women’s Right to Property Act, 1937 (1937 Act). This order of the CC was set aside by the impugned judgment of the learned Single Judge, who held that father of Nisamani Nayak i.e. Laxman Nayak died in 1947 in jointness with his brother, Raghu, leaving his only daughter, Nisamani. It was accordingly held that being a daughter, whose father died prior to Hindu Succession Act, 1956 (Act) coming into force, Nisamani could not succeed to her father’s interest in the joint family property.

2. This Court has heard the submissions of Mr. Surya Prasad Mishra, learned Senior Counsel appearing for the Appellants, M/s. A. K. Mohanty and associates, learned counsels for Respondent No.1 and Mr. Debakanta Mohanty, learned Additional Government Advocate for the State.

3. The background facts are that late Bhagabat Nayak had a common ancestral property. He had two sons - late Raghu Nayak and late Laxman Nayak. Raghu had one son, late Ramachandra. The present Respondent No.1 is the son of late Ramachandra. Late Laxman had no son and his son-in-law was Dukhishyam, who predeceased Laxman. Dukhishyam had four sons through his wife, Nisamani viz., Gauranga, Harihar (Appellant No.1), Taranisen and Gopabandhu (Appellant No.2). Taranisen had two sons: Debasis (Appellant No.4) and Debiprasanna (Appellant No.5). In effect, Harihar (Appellant No.1) and Gopabandhu (Appellant No.2) are the sons of Nisamani whereas Lokanath, Debasis and Debiprasanna (Appellant Nos.3, 4 and 5 respectively) are the grandsons of Nisamani.

4. After the death of Bhagabat Nayak, the suit properties were recorded jointly in the name of Raghu Nayak and Laxman Nayak in the current settlement Record of Rights (RoR) of the year 1931. Both were living in joint mess and properties. During such state of jointness, Laxman Nayak died in 1947 leaving behind Nisamani. His wife had predeceased him. Since Nisamani was a pre-Act daughter, the interest of Laxman in the joint family properties devolved upon Raghu by way of survivorship, later inherited by Ramachandra and after the death of Ramachandra by Kasinath, Respondent No.1.

5. The case of Respondent No.1 was that for repayment of the family debt incurred jointly by Raghu and Laxman, Ramachandra son of Raghu sold part of the properties to one Jairam Dash by a registered Sale Deed dated 22^nd November, 1948. After the death of Jairam Dash, the properties purchased by him were recorded in the names of his sons jointly. One of his sons, Rajkishore Dash sold part of the properties to the present Appellants by Registered Sale Deed dated 5^th August, 1977.

6. The case of Kasinath was that although Nisamani was not entitled to inherit the undivided interest of her deceased father Laxman in the joint family properties, a part of the said properties out of the joint RoR was wrongly recorded in her name exclusively and separately in the major settlement RoR in the year 1985. Some part of the joint family properties were also jointly recorded in the names of Ramachandra and Nisamani in the major settlement RoR of 1985. According to the Respondent No.1 herein, taking advantage of such wrong recordin