Partly allowed

Most. Khaderan Devi Sahadar and Ors. v. Jai Prakash Gupta And Ors.

Jharkhand HC14 Nov 2019FA/178/2007

Case brief

AI extract

What is this about?

A partition dispute concerned disputed paternity, a mother's inheritance and restricted land transfers. The court upheld exclusion of two daughters and lands transferred contrary to the C.N.T. Act, but awarded the deceased unmarried son's mother a half share in Schedule A/1 property. The appeal was partly allowed.

What did the court decide?

Decree modified to grant Most. Khaderan Devi a half share in Schedule A/1 property; preparation of the modified decree directed.

Most. Khaderan Devi Sahadar and Ors. Vs Jai Prakash Gupta And… — Partition | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 178 of 2007

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Most. Khaderan Devi @ Sahodari Devi wife of Late Baijnath Sah, resident of village Purani Bazar, Garhwa, P.O. & P.S. and District Garhwa.

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Sarda Devi, wife of Shanktha Prasad, D/o Late Baijnath Sao, Resident of village Teliya Nala, Rajghat, Varanasi, Maidagan House, N.A.7/443, District. Varanasi, at present Purani Bazar, Gahwa Town P.O. P.S. and District Garhwa.

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Vidyawati Devi, wife of Arun Kumar Sahu D/o Late Baijnath Sah, resident of Jhonpur, P.O. Johnpur, P.S. Johapur, at present Purani Bazar, Garhwa, P.O. P.S. and District. Garhwa.

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Pushpa Devi, wife of Bhola Nath Gupta, D/o Late Baijnath Sah, resident of Chetganj Sonpur, P.O. Varanasi House No.C 7/283, Chetganj, at present Purani Bazar, Garhwa, P.O. P.S. and District Garhwa.

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Shila Gupta, wife of Vijay Kumar Gupta, D/o Late Baijnath Sah, resident of village Englishya Lane, Varanasi, House No. S 21/24, P.S. and Dist. Varanasi, at present Purani Bazar, Garhwa, P.O. P.S. and District Garhwa.

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Rekha Gupta, wife of Om Prakash Sahu D/o Late Baijnath Sah, resident of Upper Bazar, Ranchi, Buchigali, Borth Bharat Flour Mill, Ranchi, at present Purani Bazar, Garhwa, P.O. P.S. and District Garhwa.

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..... Appellants

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-Versus-

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Jai Prakash Gupta, sonof Late Baijnath Prasad Gupta resident of Village Garhwa, Purani Bazar, P.O. P.S. and District Garhwa.

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Lalita Devi wife of Raghunath Prasad, D/o Baijnath Prasad Gupta, resident of village Chhatarpur P.O. P.S. Chhatarpur, District, Palamau. ...... Respondents

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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Alok Lal, Adv. : Mr. Santosh Kumar, Adv. For the Respondents : Mr. Sudhir Kumar Sharma, Adv. : Mr. P.C. Sinha, Adv. : Mr. Sushil Kumar Dwivedi, Adv.

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Order No. 23: Dated 14^th November, 2019

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Heard Mr. Alok Lal, learned counsel appearing for the appellants and Mr. Sudhir Kumar Sharma, learned counsel appearing for the respondents.

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This First Appeal has been filed against the judgment and decree dated 26.03.2007 and 02.04.2007 respectively, passed by the learned SubJudge-I, Garhwa in Partition Suit No. 04 of 2001. The Suit was instituted for a preliminary decree for 1/16^th Share of Schedule A, B, C and D of the suit land

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and it was also prayed by filing the said partition suit that 1/3^rd share of suit land of Schedule A/1 be passed in favour of the plaintiff No.1 and 1/8^th Share of Schedule A, B, C and D and 1/12^th share of Schedule A/1 be passed in favour of each of the plaintiff Nos. 2 to 6 and suitable takhta be carved out by a survey knowing Commissioner including movable and immovable property be allotted to each plaintiffs. Accordingly, it was prayed before the learned court below that final decree be passed and the plaintiffs be delivered with respect to under the process of the Court. A separate share of plaintiffs in movable property of schedule ‘D’ may be carved out through said Advocate Commissioner and final decree may be prepared. It was undertaken by the plaintiffs in the suit that all cost of the suit land may be awarded to the plaintiffs.

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From the pleadings and arguments, it appears that the plaintiffs namely Most. Khaderan Devi @ Sahodari Devi along with others, had filed Partition Suit No. 4 of 2001 against the defendants namely, Jai Prakash Gupta and others, for partition of the suit land. 4. The plaintiffs have stated in their petition before the learned court below that by virtue of sale deed No.689 executed on 18.02.1954 and sale deed No. 2263 executed on 23.03.1985, Late Baijnath Sah @ Baijnath Prasad Gupta owned and possessed land 0.04 decimal and 0.03 acres of land respectively, in Garhwa Town. Similarly, by virtue of sale deed No. 4511 executed on 22.07.1976, Late Baijnath Prasad Gupta purchased 1.89 acres of land along with house and Mahua trees situated in plot No.267 and 291 in village - Ursugi. The full description of the lands along with house so purchased by Late Baijnath Prasad Sah @ Baijnath Prasad Gupta has been shown in Schedule ‘A’ appended at the foot of the plaint. Late Baijnath Prasad constructed Pucca double storey house building in Garhwa Town Purani Bazar which is still coming in joint possession of plaintiffs and defendants. Further, over plot no.

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1908 under Khata No. 1113, besides above purchased land, by virtue of panchnama Late Baijnath Prasad Sah got ½ share in plot no.1096 under Khata No. 253 of Garhwa Town Purani Bazar. This Panchnama Bantwara relates to the ancestral house of Late Baijnath Prasad Gupta which he got from family partition by metes and bounds from his brother Jagdish Prasad. Thus, the total land held by Late Baijnath Prasad Gupta which has been fully described in Schedule ‘A’ of the plaint, still exists. Late Baijnath Prasad Gupta purchased the lands during his life time in the name of his two wives namely, Sunaina Devi and Most. Khaderan Devi @ Sahodari Devi by virtue of three sale deeds for a valuable consideration full description of which has been mentioned in Schedule ‘B’ appended at the foot of the plaint. Similarly, Late Baijnath Prasad Gupta had purchased the lands during his life time in village Ursugi Tola Kusmaha by virtue of sale deed No. 4512 dated 22.07.1976 and 5486 dated 10.11.1976 in the name of his two sons namely, Jai Prakash Gupta (Defendant No.1) & Om Prakash Gupta (since died). The second son of Baijnath Prasad Gupta namely, Om Prakash Gupta died unmarried during the life time of his father Baijnath Prasad Gupta. The full description of land so purchased in the name of Jai Prakash Prasad and Om Prakash Prasad have been shown in Schedule ‘C’ appended at the foot of the plaint. Besides above immovable (land) properties, Late Baijnath Prasad Gupta had purchased two Trucks bearing No. MP 27B-8879, MP 27B-0170 and One Jeep No. B.Y.T. 3381 during his life time either in his name or in the name of his sons. Since the documents of trucks have been kept by defendant no.1 in his own custody, the plaintiffs were unable to say as to whose name has been mentioned in the owner Book of the above Trucks. However, plaintiffs had stated that the entire vehicles have been purchased by Baijnath Prasad Gupta from his own earnings. The entire immovable and movable properties are self-acquired property of Late Baijnath

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Prasad Gupta. Besides above vehicle, Late Baijnath Prasad Gupta who was common husband of Plaintiff No.1 and Defendant No.3 (Sunaina Devi) and common father of Plaintiff Nos.2 to 6 and Defendant Nos.1 and 2, had opened a Motor Parts shop at village –Sonpurwa by taking shop on rent in the house of building of one Raj Kumar Pandey by making investment of his own capital of about Rs.9 Lac. The shop is still running in the house of Raj Kumar Pandey, the shop is known as “Jai Bharat Motors”. The shop “Jai Bharat Motors” is the self-acquired property of Late Baijnath Prasad Gupta. Thus, all the legal heir(s)/successors of Late Baijnath Prasad Gupta are entitled to get share in the profit as well as available capital in the shop. From the above genealogy, it has been averred in the plaint that Baijnath Prasad Gupta died leaving behind his two widows, six daughters and one sons. Out of which, second son from his second wife (widow) namely, Om Prakash Gupta predeceased his father about eight months before. Thus, the property and share of Late Baijnath Prasad Gupta dying intestate devolved upon plaintiffs and defendants who are class-1 heir(s) as under the Hindu Law of Inheritance and Succession. The plaintiff No.1 is the second wife of Late Baijnath Prasad Gupta, she is an old lady and her son namely, Om Prakash Gupta died unmarried, and her five daughters plaintiff Nos.2 to 6 have been married and they are residing in their Sasural. They have entrusted the plaintiff No.1 to look after the property belonging to their share. Accordingly, plaintiffs have been coming in joint right, title and possession over the entire area of the suit lands as well as the vehicles and the Motor Shop as mentioned in Schedule ‘B’ of the plaint. The daughters of plaintiff No.1 i.e. Plaintiff Nos. 2 to 6 are the only source of help in her old age. Defendants have completely neglected the plaintiffs. In spite of sufficient movable and immovable properties as mentioned in Schedule ‘A to D’ of the plaint, which have been left by the husband of plaintiff No.1 and her son

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namely, Om Prakash Gupta and father of plaintiff Nos.2 to 6 Late Baijnath Prasad Gupta, the defendants are not willing to partition the suit properties by metes and bounds according to the respective share of plaintiffs. The entire property except the ancestral property land of plot No. 1096 and house therein and Khata No 253 of Purani Bazar, Garhwa has been acquired by Late Baijnath Prasad Gupta and the same are still his self-acquired properties on his earning in business. Baijnath Prasad has the joint share in the ancestral property equal to his sons i.e., 1/3^rd share each and on the death of his son namely, Om Prakash Gupta, the mother of plaintiff No.1 acquired 1/3^rd share of Om Prakash Gupta by inheritance and succession. As mentioned above, the property acquired by Late Baijnath Prasad Gupta have been detailed in Schedule A, B, C and D of the plaint and the property allotted to him in partition with his co-sharer brother Jagdish Sao. The entire property as detailed in Schedule A, A/1, B, C and D were the subject matter of the suit before the learned court below.

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It has been further stated in the plaint that cause of action of the suit arose several times. Particularly on 15.05.2000, plaintiffs demanded partition of suit properties from defendants and defendants put off the matter on the pretext to partition the suit properties in the last month of June, 2000. Cause of action again arose on 18.07.2000, when plaintiffs again demanded for partition of suit properties and plaintiff put off the matter on false pretext. Thereafter, the cause of action again arose on 15.12.2000, when the local panchayati was held and defendants were not agreed to partition the suit properties according to respective shares of plaintiffs. It has further been stated in the plaint that cause of action finally arose on 09.01.2001, when defendants finally refused to partition the suit properties and referred the plaintiffs to seek partition through competent Civil Court. Cause of action arose in Garhwa Town within the jurisdiction of that Court.

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The Defendants appeared in the suit and filed their written statement and came out with the common defence that the suit as framed, is not maintainable and is fit to be dismissed. The suit is barred by principles of waiver, estoppel and acquiescence. The suit is also barred by the law of limitation and adverse possession. The suit also suffers from the non-joinder of necessary parties. The suit is also barred by the provisions of Hindu Marriage Act. The property situating in Purani Bazar, Garhwa is the dwelling house of defendant No.1 who is living in the same with his family members including his mother, Sunaina Devi. The defendants further pleaded that 0.04 acres of land have been purchased by Baijnath Sao in the year 1954 and 0.04 acres of land were allotted to him vide panchnama, but it is totally false to say that Baijnath Prasad constructed double storey building on the above mentioned lands. Besides the above mentioned lands, defendant No.1 gave money to Baijnath Prasad to purchase another 0.03 acres of land which he purchased in his own name but he was merely a trustee of defendant No.1 and the defendant No.1 also built house thereon. The house standing over and above, the above mentioned lands and courtyard are the dwelling house which was constructed by defendant No.1 from his own income and neither Baijnath Prasad nor plaintiffs have any concern with the same and the same is exclusive property of the defendant No.1, defendant No.3 and the plaintiffs and as such, the other defendants have no interest therein. The other properties shown in paragraph No.1 of the plaint are also the exclusive properties of defendant No.1 and the plaintiffs have neither right, title nor possession of the same nor they are entitled to claim any interest therein. It was further case of the defendant that Baijnath Prasad was married with Sunaina Devi and from her, he had one son and one daughter i.e. defendant No.1 and defendant No.2 respectively. Most. Khaderan Devi @ Sahodari Devi, who is plaintiff No.1 was married with one

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Ramashray Sao of village – Badhakagaon P.S. Nasariganj, District- Rohtas (old district-Ara) and she got two daughters who were plaintiff Nos.2 and 3 through Ramashray Sao - her husband. In the year 1961, Most. Khaderan Devi @ Sahodari Devi came in village –Tandwa, P.O, P.S. Garhwa, District Garhwa, at the house of her parents and made illicit relationship with Baijnath Prasad in the year 1961 and started living with him and she gave birth to the plaintiff Nos.4 to 6, and a son namely, Om Prakash Gupta, who died unmarried. Case of the defendants further envisages that a big family feud started due to which plaintiff No.1 and Baijnath Prasad started living separately from these defendants. Further, to settle the feud Baijnath Prasad had purchased 0.11 acres of land in the name of Khaderan Devi on 28.03.1962 and also purchased 0.11 acres of land in the name of defendant No.3 details of which has mentioned in Schedule ‘B’ of the plaint. Later, due to an accident in the year 1965, Baijnath Prasad Gupta became lame and thereafter, he also fell ill seriously. At that time, the defendant Nos.1 and 3 managed his treatment by selling the entire ornaments of defendant No.3. After death of the Baijnath Prasad Gupta, the plaintiff No.1 made request to defendant No.1 for shelter. Considering the request of the plaintiff No.1, defendant No.1 gave a room to plaintiff No.1 for residing therein till her lifetime on the basis of humanitarian ground. Subsequently, the plaintiff No.1 requested for some money from defendant No.1 for leading her life peacefully. The defendant No. 1, considering the need of plaintiff No. 1, gave her Rs.1,25,000/- from the amount deposited in the name of Late Baijnath Prasad, though the plaintiff No. 1 inherited nothing in the suit land or in the suit properties, but she again orally relinquished her entire claim of the suit land on her own will, if any, in favour of defendant No.1 and as per her desire Rs.1,25,000/- was given to plaintiff No.1 vide Succession Case No. 5/1999.

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It was further contended by the defendants before the learned court

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below that it appears that on provocation by other plaintiffs, the plaintiff No.1 has lodged frivolous and vexatious case with a view to grab the properties of defendant No.1 or to blackmail him by putting illegal pressure. The plaintiffs had neither right, title nor possession or interest in any of the suit lands and properties and all are exclusive properties of the defendant No.1. As the plaintiffs acquired nothing in the suit properties and hence, demand of any kind of partition does not arise. Accordingly, the defendants submitted before the learned court below that the suit is fit to be dismissed.

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On the above pleadings, the learned Trial Court framed following issues for deciding the suit:

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Issues

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1. “Is suit maintainable as framed?

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2. Has the plaintiff got valid cause of action for the suit?

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3. Is the suit barred by law of Limitation, waiver, estoppel and acquiescence?

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4. Is suit barred by Section 34 of S.R. Act?

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5. Is the suit bad for non-joinder of necessary party?

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6. Whether plaintiff Khaderan Devi is legally wedded wife of Baijnath Sah?

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7. Whether the plaintiff Nos.2 and 3 are legal heirs of Baijnath Prasad?

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8. Whether suit properties excepting ancestral house are joint property of plaintiff and defendant duly acquired By Baijnath Prasad or not?

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9. Is there unity of title and unity of possession of the plaintiff and defendant on suit property?

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10.Is the plaintiff entitled to relief as claimed, if so to what extent? 11.Is suit barred by Section 46 (1) of C.N.T. Act?”

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The Trial Court took issue Nos. 6, 7, 8, 9 and 11 altogether and after discussing exhibits and witnesses adduced on behalf of the plaintiffs as well as defendants, the Trial Court came to the finding that two daughters, who are the Plaintiff Nos. 2 and 3, were born with Khaderan Devi and Ramashray

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Sao and that is why the Trial Court did not give any share to plaintiff Nos. 2 and 3 in the Suit. While deciding the share of the parties with regard to issue No.11, the Trial Court also came to the finding that it comes under the purview of Section 46(1) of C.N.T. Act and gave the finding that the deal is void ab initio and that is why there is no need of passing any order with regard to partition of these lands.

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Mr. Alok Lal, learned counsel appearing for the appellants assailed the impugned judgment only to the effect that the findings of the Trial Court with regard to Plaintiff Nos. 2 and 3 are not correct and the findings with regard to issue No. 11 to the effect that the land in question of that issue is hit by Section 46(1) of C.N.T. Act is also bad in law. Only to this aspect of the matter learned counsel for the appellants has assailed the impugned judgment and he has not assailed rest of the findings of the learned Trial Court.

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In the light of the submissions of learned counsel, the issues which are to be decided in this case are as under:-

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(i) “Whether plaintiff Nos. 2 and 3 are the legitimate daughters of the second wife or not?

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(ii) “Whether the learned Trial Court was right in coming to the conclusion that sale deed No.4512 is hit by Section 46 (1) of C.N.T. Act or not?”

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With regard to the first issue, Mr. Alok Lal, learned counsel for the appellants addressed this Court and submits that Ext.6 is the Succession Certificate, which was passed in Succession Certificate Case No.5 of 1999 and also he submits that this succession was filed by the defendants in which plaintiff Nos. 2 and 3 and the other plaintiffs were also arrayed as defendants in that certificate case. He further submits that in the said certificate case, the father of plaintiffs Nos. 2 and 3 is said to be Baijnath Prasad Gupta. He further submits that the Trial Court was not correct in coming to the conclusion that

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plaintiffs Nos. 2 and 3 are not the daughters of Late Baijnath Prasad Gupta. He further submits that the second wife Khaderan Devi @ Sahodari Devi herself has said that plaintiff No. 2 and 3 are the daughters of Late Baijnath Prasad Gupta and also submits that Mother is the best person to say who is the father of the child.

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Mr. Alok Lal, learned counsel appearing for the appellants has relied upon a judgment passed by the Full Bench of this Court in the case of Union of India and Ors Vs. Suraj Kumar Prasad & Ors. in W.P.(S) No.8078 of 2012 and Civil Review No.2 of 2015 dated 16.06.2017 . Relevant Paragraph

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No.13 of the said judgment is quoted herein below:-

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“ 13 . Then the Division Bench proceeded to consider the effect of Hindu Succession Act and observed that in the parents property the son of the second wife also have the same right as the legitimate son of the first wife and there is no distinction and differentiation can be made with regard to share in the property of the parents. The Division Bench also considered the Apex Court decision given in the case of Rameshwari Devi v. The State of Bihar & Ors., as reported in MANU/SC/0043/2000: AIR 2000 SC 735, wherein the Apex Court held that children of the void marriage are legitimate and the property of a male Hindu dying intestate devolve firstly on heirs in Class 1 which include widow and son. A son of the second wife being legitimate son will be entitled to the property of the deceased in equal share along with the first wife and her sons. Then the Division Bench of the Patna High Court considered a policy decision of the State Government for compassionate appointment which speaks about ‘son’ only and in the opinion of the Division Bench since son of the second marriage is also legitimate son, and, therefore, the employee’s second wife’s son cannot be denied benefit of compassionate appointment.”

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Learned counsel appearing for the appellants has further relied upon a judgment passed by the Hon’ble Apex Court in the case of Revanasiddappa & Ors. Vs. Mallikarjun & Ors, as reported in 2011 (2) JCR 259 (SC) . Relevant Paragraph Nos. 26 and 33 of the said judgment are quoted as under:

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“ 26. On a careful reading of Section 16(3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitle to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of

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his parents. Clauses (1) and (2) of Section 16 expressly, declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.

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33. With the amendment of Section 16(3), the common law view that the off-springs of marriage which is void and voidable are illegitimate ‘ipso-jure’ has to change completely. We must recognize the status of such children which has been legislatively law recognizes the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.”

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Learned counsel for the appellants has also relied upon a judgment passed by the Hon’ble Patna High Court in the case of Mr. Yogendra & Ors. Vs. Leelamma N. & Ors. as reported in 2010 (2) PLJR 4 (SC) . Relevant Paragraph No. 13 of the said judgment is quoted herein

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below:-

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“ 13 . The question which now survives for our consideration is the provisions of the Sections 6 and 8 of the Hindu Succession Act. The said Act was enacted to amend and codify the law to inherent succession among Hindus. Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage where either party thereto has a spouse living at the time of marriage. Marriage between K Doddananjundaiah and Yashodamma as noticed from the findings arrived at by the Courts below took place sometime in April 1960. If that be so, the said marriage was clearly hit by Section 5 of the Hindu Marriage Act. Dinesh, therefore, would inherit the properties not as a coparcener. The Hindu Marriage Act, however, carved out an exception to the matter of inheritance of illegitimate children stating:-

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“16. Legitimacy of children of void and voidable marriages-

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(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

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By reason of the said provision a legal fiction has been created as it then stood”.

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Per contra, Mr. S.K. Sharma, learned counsel appearing for the respondents, with regard to issue No.1, submits that onus lies on the plaintiffs to prove as to whether plaintiff Nos. 2 and 3 are the daughters of Khaderan

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Devi @ Sahodari Devi or not. He further submits that there are witnesses on behalf of the defendants, who have deposed before the learned court below that the daughters of Khaderan Devi @ Sahodari Devi are elder than the daughter of Sunaina Devi, who is the first wife of Late Baijnath Prasad Gupta. Learned counsel appearing for the respondents admitted this fact that illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. He further submits that so far as the three daughters are concerned, he is not objecting to the same, but the Trial Court has come to the findings that the Plaintiff Nos.2 and 3 are the daughters of Khaderan Devi and Baijnath Prasad Gupta, rather they are the daughters of Khaderan Devi and Ramashray Sao.

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To fortify his argument, Mr. S.K. Sharma, learned counsel appearing for the respondents has relied upon a judgment passed by the Hon’ble Apex Court in the case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and Others Vs. K. Devi and Others as reported in AIR 1996 SC 1963 . Relevant Paragraph Nos. 32, 76, 79 and 80 of the said judgment which are quoted herein below:-

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“32 . Raman had contracted a second marriage, in the lifetime of his first wife, in 1948 when Madras Act XXII of 1933 was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be void would not be affected nor will the previous operation of the Act be affected by the repeal of that Act. The repeal does not mean that Madras Act XXII OF 1933 never existed on the Statute Book nor will the repeal have the effect of validating Raman's second marriage, if it was already a void marriage under that Act. 76 . The words "notwithstanding that a marriage is null and void under Section II" employed in Section 16 (1) indicate undoubtedly the following:(a) Section 16 (1) stands delinked from Section 11. (b) Provisions of Section 16 (1) which intended to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened.

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(c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16 (1) was amended.

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(d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment.

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(e) Section 16 (1) now stands on its own strength and operates independently of other Sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy.

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Section 16, in its present from, is, therefore, not ultra vires the Constitution.

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79 . In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

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80 . Obviously, appellant 2 to 6 were born prior to the date on which amendments were introduced in Section 16 (1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father, Raman Nair, under Section 16 (3) of the Act. ”

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On the basis of the above arguments, Mr. S.K. Sharma, learned counsel for the respondents submits that in view of Section 8 of the Hindu Succession Act, the learned Trial Court has rightly came to the conclusion that defendant Nos. 2 and 3 are the daughters of Most. Khaderan Devi and Baijnath Prasad Gupta. The learned counsel further submits that the Trial Court has rightly come to the conclusion that the sale is void and that is why there is no question of partition with regard to that land. He further submits that in view of Section 57 of the Indian Evidence Act, it is the duty of the court to consider all laws in force in the Union Territory of India. He further submits that in absence of the pleadings with regard to Section 46(1) of C.N.T. Act, the learned court below has rightly proceeded to decide the issue in view of Section 57 of Indian Evidence Act. He further submits that in view of Section 8 of the Hindu Succession Act and Schedule of that act, if the mother is predeceased, she is not the class-I heir and that is why, the argument of Mr. A.K. Lal, learned counsel for the appellants is not tenable.

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Having heard learned counsels for the parties, this Court perused the evidence of D.W.1 who has stated in para 2 that he knows about the property involved in the suit and in paragraph no.8, he has stated that in the year 1960, Baijnath Prasad Gupta started keeping Khaderan Devi illegitimately, who was already married earlier and she was having two daughters prior to living with Baijnath Prasad Gupta. D.W.2 has stated in paragraph No.4 that Most. Khaderan Devi @Sahodari Devi was having two daughters earlier before living with Baijnath Prasad Gupta. Further, D.W.4 in paragraph No.3 has stated that Khaderan Devi was married in Bahragaon which comes under Nasriganj Police Station and she was having two daughters. In paragraph No.4, she has stated that after six years of marriage, she started living with Baijnath Prasad Gupta illegally. D.W.6 in paragraph Nos. 3 and 4 repeated the same statement of D.W.2. D.W.7 in paragraph No.4 has also stated that Khaderan Devi has come along with two daughters. D.W.8 in paragraph No.4 has stated that the name of husband of Khaderan Devi as Rameshray Sao.

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Considering the evidences of D.Ws, it comes out that two daughters were born out of Khaderan Devi and Ramashray Sao in the year 1961 and thus, this Court finds that there is no illegality in the findings of the learned Trial Court that Khaderan Devi was having two daughters i.e. plaintiff No.2 namely, Sharda Devi and Plaintiff No.3 namely, Bidyawati Devi born out of the wedlock of Khaderan and Ramshray Sao and Plaintiff No.4 namely, Pushpa Devi Plaintiff No.5 namely, Shila Gupta and Plaintiff No.6 namely, Rekha Gupta and one son namely, Om Prakash Gupta, (who died subsequently unmarried) are born from Khaderan Devi and Baijnath Prasad.

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At the same time, this Court also finds that as per the Section-8 of the Hindu Succession Act and in view of the schedule of that Section, mother comes in category of class-I heir and evidences of P.Ws and D.Ws

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suggest that Khaderan Devi is the mother of Om Prakash Gupta (deceased). This Court also finds that as being the mother of Om Prakash Gupta, Most. Khaderan Devi is also entitled for the share in Schedule A/1 property and accordingly, she will be entitled for half share in Schedule A/1 property accordingly, issue No.1 is decided.

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So far as the issue No.2 is concerned, sale deed No.4512, seller is Dhani Mallah purchasers are Jai Prakash Gupta and Om Prakash Gupta. This transfer is hit by Section 46(1) of the C.N.T. Act and as per the Exhibit No.3 i.e. sale deed No.4586, seller is Girwar Mallah and purchasers are Jai Prakash Gupta and Om Prakash Gupta, this suit land is also hit by Section 46(1) of the C.N.T. Act, thus, transfer is void ab initio under Section 46 (3) of the C.N.T. Act. Therefore, this Court finds that there is no illegality in the findings of the learned Trial Court and rightly decided that Schedule property is hit by Section 46 of the C.N.T and not a matter of partition.

¶91

In view of the above discussions and coming to the conclusion regarding issue No.1 the judgment and decree dated 26.03.2007 and 02.04.2007 respectively, passed by learned Sub-Judge-I, Garhwa in Partition Suit No. 04 of 2001 are modified to the above effect. This First Appeal stands allowed in part and accordingly, disposed of.

¶92

Office is directed to proceed in terms of the modification and will prepare the decree.

¶93

Office is directed to send back the Lower Court Records forthwith along with a copy of this judgment to the learned court below.

¶94

(Sanjay Kumar Dwivedi, J.)

¶95

N.A.F.R Raja/-

Most. Khaderan Devi Sahadar and Ors. v. Jai Prakash Gupta And Ors.

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Most. Khaderan Devi Sahadar and Ors. v. Jai Prakash Gupta And Ors.

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