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Friday, April 10, 2015

Sec.15 (2) Hindu Succession Act - Pending suit by Grand son for declaration against the wife of paternal uncle ( mother's brother) in respect of his grand father's properties alleging that she is not the wife of his uncle - pending suit she died - the properties automatically falls on the heirs of her husband as the plaintiff failed to prove that she is a concubine and also alleged WILL put by defendants proved not valid - Since the suit was filed by the Great Grand son instead of Radha Bai grand daughter that is daughter of sumitrabai , he can not alone get declaration of title and possession and as such the suit is dismissed -2015 SC MSK






The suit property was originally owned by Shivram who had  a  daughter
Sumitrabai  and  a  son  Chhatrapati.  
The  plaintiff,   the   grandson   of
Sumitrabai, filed a  suit  for  declaration  of  ownership,  possession  and
damages in relation to the suit property against defendant nos.1 to 5.   
The
plaintiff challenged the validity of the Will dated 18.08.1977 purported  to
have been executed by Phoolbasa Bai in favour of the  sons  of  her  brother
Gayaprasad, defendant nos.1-4. 
The plaintiff also  challenged  the  validity
of the sale deed purported to have been executed by Phoolbasa  Bai  in  1987
in favour of defendant no. 5 in relation to a portion of the suit property.
The suit was contested firstly by filing joint  written  statement  by
the original defendants namely Phoolbasa Bai and Gaya  Prasad  stating  that
after  the  death  of  Shiv  Ram   the  entire  property  was  succeeded  by
Chhatrapati (his only son) as Sumitrabai was a  married  daughter.   It  was
further pleaded  that  Phoolbasa  Bai,  being  the  lawful  wedded  wife  of
Chhatrapati, became the owner  of  the  suit  property  after  Chhatrapati's
death in 1945.  During the pendency of the suit, when  Phoolbasa  died,  she
was substituted by defendant nos.1 to 4, who  also  filed  separate  written
statement in addition to earlier written statement  filed  by  the  original
defendants.  Defendant no.5 also filed separate written  statement  claiming
to be the owner of the  portion  of  property  by  virtue  of  a  sale  deed
executed in his favour in 1987.

Now the question arises, what should be the legal position after  the  death
of Smt. Phoolbasa and her son namely Mannulal when it  has  been  held  that
the alleged will executed in  favour  of  defendants  nos.1  to  4  was  not
proved. 
Certainly these properties were succeeded by her from  her  husband
or from her father-in-law, therefore, according to Section 15(2)(b)  of  the
Hindu Succesion Act, this shall devolve,  in  the  absence  of  any  son  or
daughter of the deceased (including the children of any predeceased  son  or
daughter) upon the heirs of her husband. 
 In this case, if we  look  to  the
pedigree set forth in the  plaint,  the  succeeding  heir  of  her  husband,
namely Chhatrapati, would be sister's daughter which finds place  as  serial
no.4 in Entry IV of Class II of Schedule.   
When  Radha  Bai,  the  sister's daughter is said to be alive on the date  of  succession  according  to  the plaint allegations itself, then the plaintiff,  in  the  reversionary  right
will not get the ownership of the property.

the original owner Shiv Ram had only one son namely,  Chhatrapati  and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the  suit
in the year 1992.  The relationship of Chhatrapati  and  Phoolbasa  Bai  has
not been denied.  It has also not been denied  that  they  had  been  living
together as husband and wife in a joint family.

In the fact of the case there is strong presumption in favour  of  the
validity of a marriage and the legitimacy of its child for the  reason  that
the relationship of Chhatrapati and Phoolbasa  Bai  are  recognized  by  all
persons concerned.-2015 SC MSKLAWREPORTS

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