THE HIGH COURT OF MADHYA PRADESH SA-347-2002 (SMT.PREMWATI Vs NARAYAN & ORS. )

Gwalior, Dated : 08-03-2018 Shri A.K.Jain, learned counsel for the appellants.

Shri K.S.Tomar, learned senior counsel with Shri Dinesh Baghel, learned counsel for the respondent No.1.

This Second Appeal has been filed by the plaintiff Mohanlal under Section 100 of the CPC being aggrieved by tehe judgment and decree dt.31.08.2001 passed by the 12th Additional District Judge, Gwalior in Civil Appeal No.24/2001 confirmring thereby the judgment and decree dt.24.07.1995 passed by the court of 6th Civil Judge Class II, Gwalior in Civil Suit No.236A/1994.

This appeal has been admithted vide order dt.11.02.2009 on the following substantial questions of law :-

"(i) Whether the Courts below have misdirected themselves in deciding the suit without giving specific finding about status of Dhanno Bai vis-a-vis Parma ?

(ii) Whether the judgment and decree of Courts below are vitiated due to misinterpreting g sub-clause (b) of Sub-section (2) of Section 15 of the Hindu Succession Act, 1956, which entitled the son of Dhanno Bai being deceased to inherit his mother's share devolved upon her after the death of Parma ?

(iii) Whether the lower appellate Court has acted with illegality in rejecting the amendment application despite being necessary for deciding the controversy involved in the matter ?"

As far as first substantial question of law is concerned, it is admitted by both the parties and is apparent from Ex.P/1 so also from deposition of Ramprasad (D.W.4) and Narayan Singh (D.W.5) that Dhanno Bai was not a wedded wife of Parma. Her status vis-a-vis Parma is that of concubine. In fact Dhanno Bai was married with one Shri Chhotelal from whom birth of plaintiff has taken place and thereafter Dhanno Bai left Chhotelal and was living with Parma. There is no evidence to rebut this fact that Dhanno Bai was at the most in live in relationship with Parma, as is apparent from the Ex.P/1 so also the statements given by D.W.4 and D.W.5.

This brings us to second substantial question of law as to whether the courts below have misinterpreted sub-celause (b) of Sub-

section (2) of Section 15 of the Hindu Succession Act, 1956.

Clause (b) of sub-section (2) of Serction 15 of the Hindu Succession Act, 1956 provides that any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter ofh the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. That means, if a female Hindu inherits any property from her husband oor her father-in-law and if such deceased husband or father-in-law is not survived by any son or daughter, then the property so received by a female Hindu shall devolve upon the legal heirs of the husbando and not on the legal heirs of the wife.

In view of such provisions contained in Section 15 (2) (b) of the Hindu Succession Act, it is apparent that since Dhanno Bai was not a wedded wife of Parma, therefore, she was not falling in any of the Schedule under Section 8 of the Hindu Succession act, there is no question of her inheriting any property from Parma, inasmuch as Parma was not her husband. Therefore, it can not be said that the courts below have committed any error in interpreting the provisions contained in Section 15 (2)(b) of Hindu Succession Act.

This brings under to the third substantial question of law as to whether lower appellate court acted with illegality in rejecting the amendment application.

As far as amendment application is concerned, plaintiff had filed an application for amendment to the effect that in case Will (Ex.P/1) is not found to be genuine then also plaintiff Mohanlal is entitled to claim share in the property of Parma by virtue of the fact that his mother Dhanno Bai had married with Parma. That is the case which was sought to be brought within