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1976 Supreme(MP) 99
HIGH COURT OF MADHYA PRADESH
C. Kondaiah & G.L. Oza, JJ.
Anusayabai
v.
Jagdish Prasad & others
F.A. No. 57 of 1975
Decided On : 28-9-1976
R.G. Waghmare for appellant; S.G. Gokhle for respondents.
Headnote:(1) Hindu Succession Act, 1956 - Ss. 15 (1)(a) & 16 - female propositus - only children of first generation are meant - grand children have no right to succeed.
The very section 15 (1) specifically indicates that the rules set out in section 16 would govern the orders of succession among the heirs specified in section 15 (1), and the mode of distribution of property among them. There too, the rules laid down in section 16 are pivotal to determine the order of succession among the heirs referred to in section 15.
Rule 1 of section 16 entitles the heirs in one entry specified in sub-section (1) to succeed to the estate of the female propositus to the exclusion of those heirs in any succeeding entry. All the heirs that would fall in one entry shall take simultaneously. [Para 9
The grand children cannot be equated to the children of the female Hindu. The use of the expression "his or her own children alive" in rule (2) set out in section 16 indicates the use of the expression 'children' in section 15 (1) (a) to be of limited import so as to take in only children born to the pre-deceased son or daughter. AIR 1963 SC 1493 relied on. [Para 10
(2) Hindu Succession Act, 1956 - S. 15 (1) (a) - 'children' - meaning of does not mean grand children.
Where an expression in a statute is not defined, it must be construed in the context and the attending circumstances under which the expression 'children' has been implied in section 15 (1) (a) of the Act. The Courts can only interpret and construe the expression taking into account the context and setting in which it has been used, but it is not open to the Courts to read something into the section, which is not enacted by the Sovereign Parliament. [Para 11
The expression 'children' used in section 15 (1) (a) of the Act must be construed only as issue of the first generation which alone is consistent with the intendment and scheme of the Act. This word 'children' cannot be given wider import so as to include grandson. [Para 12
(3) Hindu Succession Act, 1956 - S. 15 (1) (a) - son-includes adopted, legitimate and illegitimate 'son'.
The son, who is declared to be an heir of a female Hindu under section 15 (1) (a) or that of a male Hindu specified in Class 1 of the Schedule attached to section 8 would include both the natural son and a son adopted in accordance with law relating to adoption among Hindus. The children may be legitimate of illegitimate. The child may be in the womb of the mother at the time when the succession opens. All such children must be held to be persons entitled to inherit under the Act. [Para 15
(4) Limitation Act, 1963 - Arts 110 & 113 - applicability - suit for partition of movable property.
Article 110 applies only to a case of joint family property. Where the suit is between two co-heirs, the suit for movables must be filed within 3 years from the date on which the plaintiffs right to sue accrues. To such a suit Article 113 applies [Para 16
(5) Civil P.C., 1908 - S. 2 (12) & O. 20, R. 12 (1) (b) - interest-must be allowed in computing mesne profit.
Interest is an integral part of mesne profits defined under section 2 (12) of the Civil Procedure Code. It must, therefore, be allowed in the computation of meme profits itself. AIR 1965 SC 1231 & AIR 1950 AP 64 relied on. [Para 18
Kondaiah, J.
This appeal by the defendant is directed against the judgment of the Court of the Additional District Judge, Dewas, decreeing the civil suit No. 134-A of 1974 instituted by the respondents for partition and possession of their half share in the plaint Schedule movable and immovable properties and for mesne profits.
2. In order to understand the scope of the appeal and the respective contentions of the parties it is necessary to state the material fact that led to this appeal. One Harlal, a Hindu brahmin, resident of Malagaon village, Tahsil Khategaon in the district of Dewas died in the year 1920 leaving behind him his widow Bhagirathibai, son Balmukund and daughter Gajribai and considerable movable and immovable properties. The daughter Gajribai who was married died in 1931 leaving behind her sons - Jagdishprasad, Gangaprasad and Jamnaprasad, the respondents herein. Balmukund, the son of Harlal died on 19-2-1966 leaving behind him the plaint Schedule properties and Anusayabai, the daughter of Ganpatibai, the predeceased daughter of Balmukund and his mother Bhagirathibai Bhagirathibai also died on 2-3-1966.
3. On 6-10-971, the present suit for partition of the plaint Schedule properties left by Balmukund and for possession of their half share and mesne profits for three years from the date of suit was instituted by the respondents on the ground that they being the sons of Gajribai, the predeceased daughter of Bhagirathibai and consequently they are heirs of Bhagirathibai, who by the date of her death, acquired a right to the half share to the estate of Balmukund, who died on 19-2-1966. The appellant-defendant filed a written statement contending inter alia that the plaintiffs are not entitled to any share and in any event they can get one forth share as she being the representative of her grand father Balmukund branch would be entitled to the one-fourth along with the plaintiffs in the estate of Bhagirathibai; and that the suit is barred by limitation in respect of the recovery of moveables.
4. The trial Court on a consideration of the entire oral and documentary evidence held that on the death of Balmukund. his mother Bhagirathibai and the grand daughter, the appellant Anusayabai would ad inherit half of the plaint Schedule property-the estate of Balmukund and that undivided half share inherited by Bhagirathibai would devolve on her death on 2-3-1966 on her pre-deceased daughter's sons, the respondents-plaintiffs and consequently decreed the suit for partition and for possession of the half share of the plaint-schedule properties and the remaining half would go to the appellant Anusayabai, The trial Court determined the mesne profits at Rs. 100/- per acre in respect of 48 acres of cultivable land which amounts to Rs. 4800/- and refused to fix any mesne profits for the remaining 10 acres of pasture land, and directed the defendant-appellant to pay mesne profits of Rs 2400/ per year since three years from the date of this suit till the date of delivery of possession. The trial Court also granted a decree for the-recovery of half of the moveables worth Rs. 1625.00, rejecting the plea of limitation raised by the defence in that regard. The trial Court did not award interest on the mesne profits granted to the plaintiffs. Hence the appeal by the defendant and the memo of cross-objections by the respondents in respect of their claim for interest on mesne profits awarded to them and also for mesne profits in respect of pasture land of 10 acres.
5. The contention of Shri Waghmare, learned counsel for the appellant is three-fold:
(1) The expression "children" used in section 15 (1) of the Hindu Succession Act, 1956 is of wide concept so as to take in the grand children of any predeceased son or daughter and, therefore the appellant must be entitled to a half share along with the respondents in the estate of Bhagirathibai.
(2) That the present suit filed on 6-10-1971 is barred by limitation in respect of moveable properti
