Partition suit - furnishing false facts in order to cover benefits of Section 3 of the 1937 Act - Suit is liable to be dismissed.
The partition suit spans a period of just one year less than half a century, and that too laid on incorrect and false facts. The suit is filed by the two daughters of Kalpnath Rai and Bataso Kuar. The suit is predicated on two false facts as stated aforesaid: 1) that the father Kalpnath Rai died in 1938, an averment made with the oblique motive of bringing it within the protection of the Hindu Women’s Right to Property Act, 1937 (hereinafter called the Act of 1937), even though Kalpnath Rai passed away in 1921. It is impossible to conceive that the daughters did not know that the father passed away 17 years earlier! 2) that Kalpnath Rai was survived by a minor son Baikunth Rai who died in 1942, who had a wife Lagana Kuar, who died in 1994, without any progeny. The son Baikunth Rai was in fact survived by a daughter Talukraj, a fact not disclosed in the plaint.
We must note with some anguish that we repeatedly come across suits based on false facts, without any consequences flowing. It is high time that such a tendency is nipped in the bud, without going through elaborate trials and appeals. Considerable judicial time is spent on such cases. In our view, on account of false averments qua the demise of Kalpnath Rai, that itself was a ground to have dismissed the suit. We accordingly dismiss the appeal with costs
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2936/2011
BHAGWAN SINGH & ORS. Appellant(s)
VERSUS
DINESH KUMAR SINGH & ORS. Respondent(s)
O R D E R
The partition suit spans a period of just one year less than
half a century, and that too laid on incorrect and false facts.
The suit is filed by the two daughters of Kalpnath Rai and
Bataso Kuar. The suit is predicated on two false facts as stated
aforesaid: 1) that the father Kalpnath Rai died in 1938, an
averment made with the oblique motive of bringing it within the
protection of the Hindu Women’s Right to Property Act, 1937
(hereinafter called the Act of 1937), even though Kalpnath Rai
passed away in 1921. It is impossible to conceive that the
daughters did not know that the father passed away 17 years
earlier! 2) that Kalpnath Rai was survived by a minor son Baikunth
Rai who died in 1942, who had a wife Lagana Kuar, who died in 1994,
without any progeny. The son Baikunth Rai was in fact survived by a
daughter Talukraj, a fact not disclosed in the plaint.
The correct facts which emerge from the depositions, which
even necessitated the amendment of plaint (amended plaint not
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placed on record) is that Kalpnath Rai died in 1921, survived by
Bataso Kuar, the wife/widow, his two daughters and Baikunth Rai,
the son, who was a minor at that time. Thus, the law prior to the
Act of 1937 would apply, and as per the Mitakshara law, it is
Baikunth Rai alone who would inherit the property of Kalpnath Rai,
with Bataso Kuar having only a right of maintenance which would be
only a charge on the property. We may take benefit of the
Commentary of Mulla on Hindu Law, Volume I, 20th Edition, Page
No.119, where the law prior to the Act of 1937 has been summarized
as under:
“Under the law prior to the Act, the widow of a person
governed by Mitakshara had only a right of maintenance in
respect of coparcenary property in which the husband had
interest. In respect of separate property left by her
husband, she had only the right of maintenance when the
husband has left a son, grandson or a great-grandson. She
could inherit his separate property only in the absence of
these immediate heirs. All this was changed and her rights
were augmented as pointed out above. As to the effect of
adoption by her, see Rani Lachhmi Kunwar v. Shiam Singh
(AIR 1949 11 786)”
Baikunth Rai got married to Lagana Kuar and had a daughter,
Talukraj. Baikunth Rai also unfortunately passed away in 1942,
i.e. post the Act of 1937. At that stage, rights in the property
devolved on his wife/widow Lagana Kuar in terms of the Act of 1937.
For convenience of reference, we reproduce Section 3 which reads as
under:
“3.Devolution of property – (1) When a Hindu governed by
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the Dayabhaga School of Hindu Law dies intestate leaving
any property, and when a Hindu governed by any other school
of Hindu Law or by customary law dies intestate leaving
separate property, his widow, or if there is more than one
widow all his widows together, shall, subject to the
provisions of sub-section (3), be entitled in respect of
property in respect of which he dies intestate to the same
share as a son:
Provided that the widow of a predeceased son shall inherit
in like manner as a son if there is no son surviving of
such predeceased son, and shall inherit in like manner as a
sons’ son if there is surviving son a or son’s son of such
predeceased son:
Provided further that the same provision shall apply
mutatis mutandis to the widow of a predeceased son of a
predeceased son.
(2) When a Hindu governed by any school of Hindu law
other than the Dayabhaga School or by customary law dies
having at the time of his death an interest in a Hindu
Joint family property, his widow shall, subject to the
provisions of sub-section (3), have in the property the
same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the
provisions of this section shall be the limited interest
known as a Hindu woman’s estate, provided however that she
shall have the same right of claiming partition as a male
owner.
(4) The provisions of this section shall not apply to an
estate which by a customary or other rule of succession or
by the terms of the grant applicable thereto descends to a
single heir or to any property to which the Indian
Succession Act 1925, applies.”
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Bataso Kuar died in 1968 while Lagana Kuar died much later,
post the promulgation of the Hindu Succession Act, 1956, in the
year 1994.
The appellants before us are the legal heirs of the two
daughters Kaushalya Devi and Ram Navmi Devi, both of whom are
stated to have passed away in 1998, and who are the original
plaintiff Nos.1 and 2, while the contesting respondent Nos.1 to 6
are the progenies of Talukraj, the daughter of Baikunth Rai and
Lagana Kuar.
We have already noticed that the plaint is laid on the basis
that the rights of Bataso Kuar would be governed by the Act of
1937, which is not so, in view of Kalpnath Rai having passed away
in 1921. The plaint is further predicated on a rationale that
Bataso Kaur’s limited right under the 1937 Act matured into an
absolute right under Section 14 (2) of the 1956 Act and thus, the
two daughters (original plaintiffs) are entitled to an equal share,
as the son Baikunth Rai i.e., the legal heirs should get 1/3rd
share each in Bataso Kuar’s share.
The suit was, however, dismissed by the 5th Additional SubJudge, Sasaram after framing of the issues and recording of
evidence. It would suffice to note that the trial Court recorded
qua issue No.5 that the same dealt with the aspect whether Bataso
Kuar acquired any right or title in the suit property in lieu of
maintenance. It was at the time of arguments, as recored in that
order, that the plaintiff amended the plaint to say that their
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mother Bataso Kuar acquired valid right and title into half of the
suit property, in lieu of her maintenance, pleading it as an
alternative case.
The appeal preferred by the appellants met with the same fate
by judgment in First Appeal of the High Court of Patna dated
02.02.2009, after 35 years. The High Court framed the following
questions:
“i Whether Bataso Kuar had acquired any interest in the
suit land?
ii. Whether Bataso Kuar acquired the right and title over
the share in lieu of her right to maintenance?
iii Whether the plaintiffs are entitles to share in the
suit property.”
It is recorded in the impugned judgment that the appellants
had given up the case of the death of Kalpnath Rai in 1938 and
thus, the only question before the Court was to refer to oral
evidence to see whether the appellants can show that Bataso Kuar
came into possession of the suit property in exercise of her right
of maintenance. It recorded that Bataso Kuar and Lagana Kuar never
had any disputes and lived peacefully together and a finding was
reached, on the basis of evidence, that the appellants had been
unable to establish that Bataso Kuar came into possession of any
part of the suit property in exercise of her right of maintenance.
We may, thus, note that the aforesaid findings being of the
first appellate court, are final findings of fact.
Learned counsel for the appellants sought to urge before us
that assuming the factual situation of the demise of Kalpnath Rai
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in 1921, the accepted position is that Bataso Kuar would only get a
right of maintenance on that date, with Baikunth Rai being the
exclusive inheritor of the property, though a minor. However,
right of maintenance of Bataso Kuar can be a charge on the
property. However, his submission is that the Act of 1937, coming
into force in the meantime, expanded the rights of Bataso Kuar as
did the Act of 1956, and that the 1937 Act only recognized and
codified the existing rights of a Hindu widow.
His further plea is that both the courts below fell into an
error in not appreciating that the possession of Bataso Kuar
matured into a right of possession in recognition of her right of
maintenance, which would become an absolute right post the 1956
Act, in view of the provisions of Section 14(1) of the said Act.
In this behalf, he relies upon a judgment of this Court in
Mangal Singh & Ors. v. Smt. Rattno (Dead) by LRs. & Anr. - AIR 1967
SC 1786. The discussion in para 6 of this judgment has dealt with
the meaning to be assigned to the use of the phraseology “any
property possessed by a female Hindu” in the wisdom of the
Legislature in Section 14(1) of the 1956 Act, as distinct from the
phrase “any property in possession of a female Hindu”. This was
stated to be significant as the implication was that actual
physical possession is not necessary and for that matter not even
constructive possession as in case of lease, mortgage, license etc.
However, in fact, interpretation of Section 14(1) goes to cover
cases where land may have descended to a female Hindu, even if she
had not actually entered into them.
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We, however, at this stage itself, note as to why in our
opinion, the aforesaid judgment which may otherwise look as helping
the appellant, does not actually come to the aid of the appellant.
The succession of Kalpnath Rai opened in 1921. On that date, there
was no question of Bataso Kuar coming into possession as her right
was restricted only to that of maintenance. Thus, the principle
enunciated in Mangal Singh (supra) would not apply in the given
factual scenario, as per the plaint laid by the appellants.
The aforesaid being the position, what emerges by application
of law in the factual situation is that on the demise of Kalpnath
Rai in 1921, Baikunth Rai alone, though a minor, inherited the
entire estate of Kalpnath Rai, with only a right of maintenance
being given to Bataso Kuar. On the demise of Baikunth Rai in 1942,
the widow Lagana Kuar became the limited owner of the property, as
contemplated under Section 3 of the 1937 Act (the daughter not
having a right under that Act). Bataso Kuar died in 1968, while
Lagana Kuar died in 1994. The 1956 Act had come into being by
then. Thus, Lagana Kuar’s right became her absolute right, which
devolved on her daughter Talukraj and thereafter, on the legal
representative(s) of Talukraj. That being the position, the
original plaintiffs would have no right in the property and thus,
we are in agreement with the view taken by the Courts below.
We must note with some anguish that we repeatedly come across
suits based on false facts, without any consequences flowing. It is
high time that such a tendency is nipped in the bud, without going
through elaborate trials and appeals. Considerable judicial time
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is spent on such cases. In our view, on account of false averments
qua the demise of Kalpnath Rai, that itself was a ground to have
dismissed the suit.
We accordingly dismiss the appeal with costs.
……………………………………....J.
[SANJAY KISHAN KAUL]
……………………………………....J.
[K.M. JOSEPH]
NEW DELHI;
MARCH 04, 2020.
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ITEM NO.101 COURT NO.12 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.2936/2011
BHAGWAN SINGH & ORS. Appellant(s)
VERSUS
DINESH KUMAR SINGH & ORS. Respondent(s)
(PART-HEARD BY HON'BLE SANJAY KISHAN KAUL AND HON'BLE K.M.
JOSEPH ,JJ. )
Date : 04-03-2020 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE K.M. JOSEPH
For Appellant(s) Mr. Manu Shanker Mishra, AOR
Mr. Nishant Kumar, Adv.
Mr. Tripurari Rai, Adv.
Mr. Balbant Singh Biloriya, Adv.
Mr. Vivekanand Singh, Adv.
Mr. Anirudh Ray, Adv.
For Respondent(s) Mr. Basant R., Sr. Adv.
R 1-6 Mr. Prem Prakash, AOR
Mr. Shikhar Bhardwaj, Adv.
Mr. Abhijit Bhatnagar, Adv.
Mr. Manu Krishna, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the signed order.
Pending application, if any, stands disposed of.
(DIPTI KHURANA) (ASHA SUNDRIYAL)
COURT MASTER AR CUM PS
[Signed order is placed on the file]
