LAKHMAN KUMAR KAR Vs. BASANTA KUMARI

JUDGEMENT

(1.) THIS is an appeal by the defendant against a decision of a learned Judge of this court in Second Appeal No. 407 of 1963. The parties in this litigation are residents of the ex-State area of Gangpur now comprised in the district of Sundergarh. One udhaba Kar, who was separate from his brothers, died in the year 1938 leaving behind Sunakha-dika, the widow of his pre-deceased son Krupa, the two daughters of Krupa who are the plaintiffs, Bikram who was Krupa's only son and the disputed properties. Bikram died on 11-2-1945 and Sunakhadia died in the year 1953. Thereafter litigation started in respect of the disputed properties between the plaintiffs who claimed the entire property for themselves and the defendant who is the grandson of one of the separate brothers of Udhab. The claim of the plaintiffs is that on the death of Udhab his entire properties devolved on his grandson Bikram as the Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as the 1937 Act), which undoubtedly was in force in British india at the time of Udhab's death in 1938 was not in force in Gangpur State; that after Bik-ram's death in 1945 leaving behind him his two sisters, the plaintiffs, and his mother Sunakhadika, these properties devolved on the mother who held the same as a limited owner and that on the lattcr's death in 1953 by which time the merger had taken place and the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929 (hereinafter referred to as the. 1929 Art) and the Hindu women's Rights to Property Act 1937 had been brought into force in the ex-State area of Gangpur, the property devolved on the heirs of the last full owner, namely, bikram; and that the plaintiffs being the sisters of Bikram became entitled under the 1929 Act to succeed to the entire properties. As the defendant had been given possession of the disputed properties by vir tue of an order passed under Section 145 Cr. P. C. , the plaintiffs asked for recovery of possession.

(2.) THE substantial defence put forward on the defendant's side and which found favour with the learned trial Court is that by virtue of the provisions of the 1937 act which, according to the learned Munsif, must be deemed to have been in force in the ex-State area of Gangpur by 1938 when Uddhab died, half of the interest in the suit property devolved on Sunakhadika (widow of a predeceased son) as a limited owner and the other half devolved on Bikram, the grandson. In 1945, when Bikram died, Sunakhadika succeeded as mother heir to Bikram's interest, and held it as a limited owner. When in 1953 Sunakhadia died, half of the interest in the property which Sunakhadika had inherited from Bikram devolved on bikram's heirs who by then were his two sisters the plaintiffs, and the other half to which Sunakhadika had succeeded as limited heir of her deceased father-in-law uddhab, devolved on the heir of Uddhab who by then, it is not disputed, was the defendant. In this view of the case, the learned Munsif passed a decree in favour of the plaintiffs only in respect of half of the suit property.

(3.) ON appeal by the plaintiffs, the first appellate court gave the finding that the 1937 Act was not in force in the ex-State area of Gangpur at any time before 1st january, 1948 and consequently, the claim as put forward by the plaintiffs must succeed in toto. He, therefore, allowed the appeal. His view was confirmed in second Appeal in the High Court.