Partition suit by wife against her father and brother - died - husband will not be entitled to succeed to the property left by his wife, if she has acquired the property in question from her father
Citation
CDJ 1980 MP HC 068
Raghuwar vs Janaki Prasad
Comparative citation
AIR 1981 MP 39
Judgement
A.R. NAVKAR, J.
(1.) This is a revision against the order dated 8-1-1980, passed by the Additional District Judge, Gwalior, in Civil Suit No. 13-A/78.
(2.) The facts of the case are that the wife of Janki Prasad--non-applicant, filed a suit for partition of the agricultural land and the houses against Raghuwar, alleging that the applicant and her father were real brothers and they are the owners of half share each in the disputed property. The plaintiff, that is to say the wife of the non-applicant is the only daughter of her father, who is now no more. Therefore, she is entitled to get the disputed property partitioned. The defendant-applicant denied the plaint allegations. During the pendency of the suit, the plaintiff expired. The husband, i. e. the non-applicant, filed an application under Order 22, Rule 3 of the Code of Civil Procedure, for bringing himself on record in place of the deceased as her legal representative. This application was contested by the defendant, Haying that according to Section 15 (2) of the Hindu Succession Act, 1956, the non-applicant cannot be the legal representative of his wife. The learned lower Court allowed the application and ordered that the name of the non-applicant be brought on record in place of the deceased plaintiff. Against that, the present revision is filed. If the non- applicant is a heir of his wife, or if he can get the property left by his wife, then alone, his name can be substituted in place of the deceased. But, if he is neither the heir of the deceased, nor he can claim any interest in the property left by her, he cannot be made a party as a legal representative of the deceased only because he may be termed as an intermeddler with the property of the deceased. This takes me to Section 15 of the Hindu Succession Act, 1956. Section 15 is with respect to general rules of succession in the case of female Hindus. Section 15 reads as under :-
"15 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, - (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband: (b) secondly, upon the heirs of the husband ; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2). Notwithstanding anything contained in Sub-section (1); (a) any property inherited by a female Hindu from her rather or mother shall devolve, in the absence of any son or daughter of 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 father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any sou or daughter of 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." Section 15 (1) says that the property will devolve on a female Hindu dying intestate firstly, upon the sons and daughters including the children of any predeceased son or daughter and the husband. At first reading, it seems that the husband is one of the heirs of a female who dies intestate, but Section 15 (2) makes the position clear. It says that if the female Hindu inherits the property from her father or mother, then it will devolve on the heirs of father or mother from whom the property is inherited by the female, but it will not devolve on husband even though he appears in the list of heirs mentioned in Section 15 (1). The learned counsel for the non-applicant referred to me to Section 14 of the said Act. But, Section 14, in my opinion, has no relevancy to decide the present dispute. Section 14 only says that if the property is acquired by a limited owner and if that limited owner, i. e. the female is in possession of the said property, then that will become her absolute property. So, even assuming that the de-ceased in the present case became the full owner of the property, the question still remains that after her death, who will be entitled to succeed to the property left by her, according to Hindu Succession Act. As I have already mentioned above, the husband will not be entitled to succeed to the property left by his wife, if she has acquired the property in question from her father, which is the ease here.
(3.) Therefore, the result is that taking into consideration the relevant provisions of the Hindu Succession Act, I must hold that the non-applicant has no interest whatsoever in the property in dispute, because that property the deceased wife got from her father. Neither the non-applicant is in actual possession of the property in dispute. Therefore, he cannot be said to be an intermeddler also. That being the ease, I am of the view that the order passed by the learned lower Court cannot be maintained. The name of the applicant cannot be substituted in place of his deceased wife.
(4.) As such, the result is that the revision is allowed the order of the learned lower Court is set aside and the application filed by the non-applicant for bringing his name on record as plaintiff is dismissed. Looking to the nature of the case, I am of the view that the parties should bear their own costs.
(1.) This is a revision against the order dated 8-1-1980, passed by the Additional District Judge, Gwalior, in Civil Suit No. 13-A/78.
(2.) The facts of the case are that the wife of Janki Prasad--non-applicant, filed a suit for partition of the agricultural land and the houses against Raghuwar, alleging that the applicant and her father were real brothers and they are the owners of half share each in the disputed property. The plaintiff, that is to say the wife of the non-applicant is the only daughter of her father, who is now no more. Therefore, she is entitled to get the disputed property partitioned. The defendant-applicant denied the plaint allegations. During the pendency of the suit, the plaintiff expired. The husband, i. e. the non-applicant, filed an application under Order 22, Rule 3 of the Code of Civil Procedure, for bringing himself on record in place of the deceased as her legal representative. This application was contested by the defendant, Haying that according to Section 15 (2) of the Hindu Succession Act, 1956, the non-applicant cannot be the legal representative of his wife. The learned lower Court allowed the application and ordered that the name of the non-applicant be brought on record in place of the deceased plaintiff. Against that, the present revision is filed. If the non- applicant is a heir of his wife, or if he can get the property left by his wife, then alone, his name can be substituted in place of the deceased. But, if he is neither the heir of the deceased, nor he can claim any interest in the property left by her, he cannot be made a party as a legal representative of the deceased only because he may be termed as an intermeddler with the property of the deceased. This takes me to Section 15 of the Hindu Succession Act, 1956. Section 15 is with respect to general rules of succession in the case of female Hindus. Section 15 reads as under :-
"15 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, - (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband: (b) secondly, upon the heirs of the husband ; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2). Notwithstanding anything contained in Sub-section (1); (a) any property inherited by a female Hindu from her rather or mother shall devolve, in the absence of any son or daughter of 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 father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any sou or daughter of 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." Section 15 (1) says that the property will devolve on a female Hindu dying intestate firstly, upon the sons and daughters including the children of any predeceased son or daughter and the husband. At first reading, it seems that the husband is one of the heirs of a female who dies intestate, but Section 15 (2) makes the position clear. It says that if the female Hindu inherits the property from her father or mother, then it will devolve on the heirs of father or mother from whom the property is inherited by the female, but it will not devolve on husband even though he appears in the list of heirs mentioned in Section 15 (1). The learned counsel for the non-applicant referred to me to Section 14 of the said Act. But, Section 14, in my opinion, has no relevancy to decide the present dispute. Section 14 only says that if the property is acquired by a limited owner and if that limited owner, i. e. the female is in possession of the said property, then that will become her absolute property. So, even assuming that the de-ceased in the present case became the full owner of the property, the question still remains that after her death, who will be entitled to succeed to the property left by her, according to Hindu Succession Act. As I have already mentioned above, the husband will not be entitled to succeed to the property left by his wife, if she has acquired the property in question from her father, which is the ease here.
(3.) Therefore, the result is that taking into consideration the relevant provisions of the Hindu Succession Act, I must hold that the non-applicant has no interest whatsoever in the property in dispute, because that property the deceased wife got from her father. Neither the non-applicant is in actual possession of the property in dispute. Therefore, he cannot be said to be an intermeddler also. That being the ease, I am of the view that the order passed by the learned lower Court cannot be maintained. The name of the applicant cannot be substituted in place of his deceased wife.
(4.) As such, the result is that the revision is allowed the order of the learned lower Court is set aside and the application filed by the non-applicant for bringing his name on record as plaintiff is dismissed. Looking to the nature of the case, I am of the view that the parties should bear their own costs.
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