DISARI SANYASI Vs. MATAM CHILPA HAVING DIED DHANA

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree passed by the learned Addl. District Judge, Jeypore in Title Appeal No. 4 of 1985 reversing the judgment and decree of the learned Addl. Munsif, Jeypore in Title suit No. 24 of 1980.

(2.) THE appellants as plaintiffs filed the above noted suit with a pleading that the property described in the Schedule of the plaint is the joint family property of the plaintiffs and the father of the defendant namely Disarl Damdu. This Disari Dambu had no male issue, but had only a daughter, defendant No. 1. So he adopted plaintiff No. 3 as his son. The defendant was married and was living in her husband's village for last 40 years but after the death of Disari Dambu she claimed right, title over the suit property of Disari Dambu as the legal heir and also basing on a gift deed allegedly executed by the said Disari Dambu. Since there was a scramble for possession a 145, Cr.P.C. proceeding was initiated in the Court of Executive Magistrate where the possession of defendant was declared. The plaintiffs, therefore, filed the suit for recovery of possession and eviction of the defendant from the suit land. The defendant in W.S. while denying the claims of the plaintiffs averred that her father Disari Dambu had already separated himself in mess and property and was in possession of the suit property and being his only legal heirs, she continued possession over that property. The defendant denied any adoption .of plaintiff No. 3 by her father and the possession of the plaintiff over the suit land. She asserted that being the only daughter and heir of Disari Dambu, she is the owner in possession of the suit property.

(3.) LEARNED Courts below have concurrently held that plaintiff No. 3 is not the adopted son of Disari Dombu. There being concurrent findings of the Courts below on such factual issue the matter cannot be reopen in second appeal. Regarding the status of the parties, learned first appellate Court has held that Disari Dombu was no more in jointness with the plaintiffs. This finding also being a finding of fact cannot be re -agitated in the second appeal unless the decision is tainted with perversity or error of record. No such plea of perversity or error of remand is now there before this Court. Therefore, the said decision has also assumed finality. Now the sole question is whether the defendant under the old Hindu law had any right in the property of Disari Dombu. Sections 24 and 25 of the Principles of Hindu Law by Mulla speak about modes of devolution of property and rights of female heirs. All Mitakshara Schools accept 5 females, who can succeed as heirs to a male. These heirs are : (1) Widow, (2) daughter, (3) mother, (4) father's mother, (5) father's mother. In the illustration it has also clarified that if two Hindu brothers governed by Mitakshara School of law are the members of joint and undivided family then on the death of one of the brothers his share in the joint family property would pass on to his brother as the surviving coparcener and not to the daughter. But if such properties were separate then the property of the deceased -brother would on his death pass to his daughter as his heir. In other words, if the brothers are separate in status then the property of each brother would pass on to his respective heirs including a daughter. In the present case admittedly Disari Dombu had no son and the defendant is the only daughter of Disari Dombu. Once this Disari Dombu is found to be separate in status then on his death, his property would pass on to his daughter and such daughter would have limited interest and would hold that property as owner thereof till life time. However, in view of the provisions of Section 24 of Principles of Hindu Law of Mulla, on the death of the daughter her son, if any, would succeed to that property of his mother and would hold the same as an absolute owner as per the provision of Section 43(6) of the Principles of Hindu Law. This view is also supported by a decision rendered by a Division Bench of this Court in the case of Duml Majhianl (having died) Chandra Mohan Majhi and Ors. v. Lalamohan Majhi and Ors. 77 (1994) CLT 219.