GAYA Vs. MOTI LAL

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for partition. The plaintiff Gaya claimed 1/2 share in the property in the suit. The trial Court declared his share to be 1/12th and the share of the defendants Nos. 1 to 5 to be 11/60 each. The decree of the trial Court was confirmed by the lower appellate Court. The only question involved in this appeal is whether the plaintiff's share in the property in the suit is 1/2 as claimed by him or 1/12th as decreed by the two Courts below. The question arises this way : The property belonged to Bhaggal Sahu. He died in year 1938, leaving behind him surviving four daughters, namely, Sudesra, Chandar, Bayasi, Suraj and Rajwanti. The plaintiff is the son of Bhaggal Sahu's fifth daughter Chander who had pre-deceased Bhaggal Sahu. Bayasi died in the year 1947 followed by Suraj in the year 1949, and the property came to be vested in Sudesra and Rajwanti. Both of them were living when the Hindu Succession Act, 1956 came into force. Their limited estate in the property became full ownership by the operation of Section 14 of that Act. They had 1/2 share each. Rajwanti died in the year 1958 leaving her surviving five issues, namely, the only son Moti Lal defendant No. 1, and four daughters Chameli, Gyatri Devi, Bela and Savitri, the defendants Nos. 2 to 5 respect ively. There is no dispute that 1/2 share of Rajwanti is shared equally by the five defendants. The dispute arises with regard to 1/2 share of Sudesra who had died on 15th July, 1962, leaving her surviving no children but only her husband, Sri Hanuman. Hanuman died in the year 1964. The plaintiffs case is that although Hanuman had made a disposition of the property in his favour, he could not have done so inasmuch as the property was not inherited by him from Smt. Sudesra on her death as she died intestate without leaving any son or daughter. But he, the plaintiff, succeeded to Smt. Sudesra's property on her death intestate as the only heir of her father Bhaggal Sahu. The defendant respondents, on the other band, contended that the plaintiff was one of the heirs of Bhaggal Sahu and was, as such entitled to succeed to Smt. Sudesra's 1/2 share in the property on her death, but he was not the only heir, the other heirs being the five defendants themselves and thus, the plaintiff along with them took 1/6th share each in Sudesra's share in the property, that is 1/12 of the whole. On the date of Sudesra's death, i. e. 15th July, 1962 which is the date on which the succession opened, Gaya Prasad, the plaintiff, was undoubtedly a pre-deceased daughter's son of Bhaggal Sahu and thus an heir specified in Class I of the Schedule to the said Act. The defendants said that they were also the sons of daughters of Rajwanti, a pre-deceased daughter of Bhaggal Sahu. There is no dispute that Rajwanti the daughter of Bhaggal Sahu had died before the date on which the succession opened. The learned counsel for the appellant contended that she was living when Bhaggal Sahu died and could not, therefore, be deemed to be a pre-deceased daughter of Bhaggal Sahu. There is no force in this contention of the learned counsel, in view of the express provision of Rule 3 of Section 16 of the Act, which lays down : "16. Rule 3. The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's, as the case may be, and such person had died intestate in repect thereof immediately after the intestate's death." The effect of the above provision is that Bhaggal Sahu must be deemed to have died immediately after the death of Sudesra for determining the coarse of succession to Sudesra's property on the heirs of Bhaggal Sahu. No other point was pressed before me. The appeal fails and is dismissed with costs.