YAGNASENI PATEL Vs. GENERAL MANAGER, MAHANADI COALFIELDS LTD

JUDGEMENT

(1.) The petitioner, by way of this writ petition, seeks to quash the order dtd. 4/1/2020 passed by opposite party no.2-Claims Commission in Claim Case No.227 of 2019 under Annexure-4 and to issue direction to the opposite parties no.1 to 3 to treat the petitioner as well as proforma opposite parties as co-sharers and coparceners and make a declaration that they are entitled to equal share as that of the sons, i.e., opposite parties no.4, 5 and 6 in the ancestral property of late Kulamani Patel.

(2.) The factual matrix of the case, in a nutshell, is that the property pertaining to Khata No.24 of MouzaTumulia stood recorded in the name of the father of the petitioner Late Kulamani Patel, who died on 19/3/2005. After the death of the father of the petitioner, her three brothers, namely, Harihar Patel, Dambarudhar Patel and Durjan Patel got the property mutated in their names under Sec. 19(1)(c) of the Odisha Land Reforms Act, 1960 (for short "OLR Act, 1960") which was challenged by the petitioner and her two sisters, namely, Bedamati Patel and Bhagabati Patel, vide Mutation Appeal No. 9 of 2014 before the Sub-Collector, Sundargarh. By order dtd. 7/12/2016, the Sub-Collector, Sundargarh directed the Tahasildar to record the names of the daughters in the RoR along with three sons of late Kulamani Patel. Accordingly, fresh RoR was issued incorporating the names of three daughters and three sons. Thereby, the petitioner, being the daughter of Late Kulamani Patel, claimed equal share in the said property. Relying on the provisions of Sec. 6 of the Hindu Succession (Amendment) Act, 2005 and the decision of the apex Court rendered in the case of Danamma @ Suman Surpur and another v. Amar and others, Civil Appeal No. 188-189 of 2018 [SLP (C) No. 10638-10639 of 2013] decided on 1/2/2018, it was urged before the Claims Commission that the petitioner, being a daughter of a coparcener by her birth in the ancestral property of her father, is entitled to get equal share as that of her brothers irrespective of the date of death of her father Kulamani Patel. But the same was disputed by the private opposite parties stating that in view of the judgments of the apex Court in the cases of Prakash and others v. Phulabati and others, 2015 (II) CLR (SC) 1146 and also Mangammal @ Thulasi and another v. T.B. Raju and others, Civil Appeal No. 1933 of 2009 decided on 19/4/2008, daughters are not entitled to get the benefit being not the co-sharer. As a consequence thereof, the Claims Commission decided the matter against the petitioner, vide order dtd. 4/1/2020 under Annexure4, which is the subject matter of challenge before this Court in the present writ petition, by holding that the amended provision of Sec. 6 of the Hindu Succession (Amendment) Act, 2005 has no application to the petitioner.

(3.) Mr. P.K. Mohapatra, learned counsel appearing for the petitioner vehemently contended that the judgment, basing upon which the Claims Commission decided the matter, had been referred to the Larger Bench and the Larger Bench decided the same in the case of Vineeta Sharma v. Rakesh Sharma and others, 2020 (II) OLR (SC) 569, which was in favour of the petitioner. Therefore, the decision of the Claims Commission, ignoring the decision of the Larger Bench and deciding the matter in favour of the private opposite parties, cannot be sustained in the eye of law. Consequentially, quashing of the order of the Claims Commission is sought for.