CHATURBHUJ PRADHAN Vs. SARBESHWAR PRADHAN

JUDGEMENT

(1.) The plaintiff is the appellant. His case was that the land described in schedule A of the plaint besides some other lands in mauza Kuda Singh, Police station Kharswan, belonged to one Gurucha-ran Pradhan. Gurucharan had two sons Dasarathi and Kolu, the latter being the plaintiff. Dasarathhi's wife was Kamala. Dasarathi died in 1908 leaving Kamala as widow and two daughters. Paluni and Saradamani. Each of the the two daughters had a son, defendant 1 being the son of the former and defendant 2 the son of the latter The plaintiff alleged that, according to the custom in regard to succession as prevalent in that area among the people belonging to the class to which the parties belong, on the death of a male holder of property, in absence of any male issue of his, the agnates of the last male holder succeed to the estate, although the last male holder's widow will remain in possession as long as she is alive of that estate, without any power of alienation whatsoever. On her death the agnates of the last male holder will come into possession of that property. The plaintiff's further case was that Dasarathi had separated from the family during the life time of the common ancestor, Gurucharan Pradhan with schedule A property given to him. On Dasarathi's death, schedule A property came by way of succession to the plaintiff being the brother of Dasarathi, although that remained in possession of his widow Kamala. As Kamala attempted to transfer a portion of that property a title suit, title suit No. 3 of 1913, was instituted against her by Gurucharan and Kolu for restraining her from making such alienation in regard to schedule A properly. There was a compromise effected in that suit, Exhibit 2, in which it was stated by both the parties that as long as Kamala would remain alive she would continue her possession over that property and there would be no interference with her possession from any side. At the end of that document, while Kamala put her sign, it was stated by her that "Be it noted that after my death my properties will go to my heirs." I shall refer to this part of the compromise at a later stage while considering its effect on the parties to the present litigation. To continue the plaintiff's narration, Gurucharan died in 1929. Another suit. Title suit No. 11 of 1929, was brought by the present plaintiff, Kolu, again for a permanent injunction against Kamala restraining her from making any alienation, that suit was decreed on the 23rd June, 1929. In spite of that, however, Kamala executed a deed of sale in regard to a part of schedule A property (described in schedule B of the plaint) on the 3rd December. 1949 in favour of one of her daughter's son, defendant 1. That document was marked as Exhibit 3 on the plaintiff's side and Exhibit B on the defendants' side. Kamala died on the 5th May. 1957. The plaintiff claimed that after her death he is entitled to possession of Schedule B property which had gone to the possession of defendant 1 on the strength of the sale deed executed by Kamala in his favour in 1949. He, therefore, instituted the present suit for declaration of title and recovery of possession over that property.

(2.) The defence was that schedule A property was acquired by Gurucharan himself and did not form a part of the ancestral property of the family in his hand. It was given to Kamala's husband, after, whose death Kamala inherited that There was no custom in regard to succession by the agnates of the last male holder. According to the Hindu Succession Act, Kamala had acquired absolute right over that property before her death Therefore, the plaintiff had no title and was not entitled to recover any possession from defendant 1.

(3.) The Courts below have concurrently dismissed the plaintiff's suit. The trial Court held that under Sub-section (1) of Section 14 of the Hindu Succession Act, 1956, Kamala had acquired absolute rights over the suit property; and her heirs were to succeed to that on her death, in which case the plaintiff was not entitled to claim title or possession. The lower appellate Court held that Sub-section (1) of Section 14 was not attracted because Kamala was not in possession of that property when the Hindu Succession Act came into force on the 17th June, 1956. It, however, took the view that Sub-section (2) of Section 14 was to apply; and accordingly it held against the plaintiff. Hence, this second appeal was brought to this Court by the plaintiff. The custom that was pleaded by the plaintiff in regard to succession was not decided one way or the other by any of the two Courts below. The trial Court thought that the alleged custom, if any had already been abrogated Section 4 of the Hindu Succession Act and the lower appellate Court took the view that it was not necessary to go into that matter in view of the application of Sub-section (2) of Section 14 of the Hindu Succession Act.