Dismissed

Smt. Shanti Devi @ Shanti Devi v. Sri Upendra Jha and Ors.

Patna HC6 Feb 2013SA/519/2009

Case brief

AI extract

What is this about?

Second appeal on title suit regarding inheritance and applicability of Hindu Women’s Right to Property Act, 1938, hinging on the date of death of the deceased. The court dismissed the appeal, holding no substantial question of law existed as the lower court’s finding was not perverse. (19) dt.06-02-2013

What did the court decide?

The Second Appeal is dismissed as it does not involve any substantial question of law and the finding of the lower court was not perverse.

Smt. Shanti Devi @ Shanti Devi Vs Sri Upendra Jha… — Succession and Inheritance | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.519 of 2009

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====================================================== 1. Smt. Shanti Devi @ Shanti Devi W/O Sri Sudhakant Mishra R/O Vill.Matihani, P.S.- Balba Bazar, Distt.- Saharsa 2. Shanti Devi W/O Late Mahanand Mishra R/O Vill.- Sikhasan, P.S.Madhepura, Distt.- Madhepura

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Maharani Devi W/O Sri Sushil Jha, D/O Late Mahanand Mishra R/O Vill.- Sikhasan, P.S.- Madhepura, Distt.- Madhepura

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Gopal Mishra S/O Late Mahanand Mishra R/O Vill.- Sikhasan, P.S.Madhepura, Distt.- Madhepura 5. Tuntun Mishra S/O Late Mahanand Mishra R/O Vill.- Sikhasan, P.S.Madhepura, Distt.- Madhepura 6. Sri Krishanand Mishra @ Krishnanand Mishra S/O Late Raghunandan Mishra R/O Vill.- Sikhasan, P.S.- Madhepura, Distt.- Madhepura 7. Rita Devi @ Most. Rita Devi W/O Late Tarakant Mishra R/O Vill.Sikhasan, P.S.- Madhepura, Distt.- Madhepura

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Rashmi Kumari Minor D/O Late Tarakant Mishra Under The Guardianship Of Her Mother Namely Rita Devi, W/O Late Tarakant Mishra R/O Vill.- Sikhasan, P.S.- Madhepura, Distt.- Madhepura

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Chandni Kumari Minor D/O Late Tarakant Mishra Under The Guardianship Of Her Mother Namely Rita Devi, W/O Late Tarakant Mishra R/O Vill.- Sikhasan, P.S.- Madhepura, Distt.- Madhepura

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Arti Kumari Minor D/O Late Tarakant Mishra Under The Guardianship Of Her Mother Namely Rita Devi, W/O Late Tarakant Mishra R/O Vill.Sikhasan, P.S.- Madhepura, Distt.- Madhepura 11. Gulshan Kumar Mishra @ Gulshan Kumar Minor Son Of Late Tarakant Mishra Under The Guardianship Of His Mother Namely Rita Devi R/O Vill.- Sukhasan, P.S.- Madhepura, Distt.- Madhepura 12. Most. Savitri Devi W/O Late Davanand Mishra R/O Vill.- Sukhasan (Chakla), P.S.- Madhepura, Distt.- Madhepura

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.... .... Appellants

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Versus

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Sri Upendra Jha S/O Late Sumrit Jha R/O Vill.- Sukhasan (Chakla), P.S.Madhepura, Distt.- Madhepura 2. Prabha Kant Mishra S/O Late Dayanand Mishra R/O Vill.- Sukhasan (Chakla), P.S.- Madhepura, Distt.- Madhepura 3. Diva Kant Mishra S/O Late Dayanand Mishra R/O Vill.- Sukhasan (Chakla), P.S.- Madhepura, Distt.- Madhepura 4. Raman Kumar Mishra S/O Late Dayanand Mishra R/O Vill.- Sukhasan (Chakla), P.S.- Madhepura, Distt.- Madhepura 5. Smt. Gulab Devi W/O Sri Maheshwar Rai, D/O Late Raghunandan Mishra R/O Vill.- Telhar, P.S.- Bangaon, Distt.- Saharsa

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.... .... Respondents

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======================================================

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Patna High Court SA No.519 of 2009 (19) dt.06-02-2013

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Appearance : For the Appellants : Mr. Amarnath Jha, advocate

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For the Respondents : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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19 06-02-2013

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Heard learned counsel for the appellants.

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The present appeal under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been placed for hearing under Order 41 Rule 11 of the Code.

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The appellants are aggrieved by the judgement and decree dated 11-09-2009 and 08-10-2009 respectively passed by the learned Additional District Judge/ Fast Track Court, IV, Madhepura in Title Appeal No. 16 of 2000 whereby he has set aside the judgement and decree dated 03-07-2000 passed by the learned Additional Munsif, IV, Madhepura.

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The appellants herein were the plaintiffs before the trial court and had filed the title suit for declaration of title over the suit land and also for declaration that the revisional survey entry with respect to the suit land was wrong as well as the deed of gift dated 10-06-1934 executed by late Sukhadeo Jha in favour of defendant/ respondent No.1 was forged and not executed by Sukhadeo Jha. Further prayer of the plaintiffs was for a declaration that the order passed by the learned Deputy Collector, Land Reforms, Madhepura dated 10-12-1992 passed in a proceeding under Bihar Tenancy Act, 1882 was illegal. The suit land has been described in the scheduled-ka of the plaint which as follows:-

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Patna High Court SA No.519 of 2009 (19) dt.06-02-2013

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Old Khata No.	Old Khesra No.	New Khesra No.	Area
121	1961	2492	0.2-17 & 1/2
61	1962	2490	0.1-19
161 (ka)	1963	2395	0.1-14 &1/2
161(ka)	1889	2308	0.5.0
178	1867/2040	2213	0.5.10
			Total- 17 katha 01 dhur

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The case of the plaintiffs before the trial court was that Sukhadeo Jha died leaving behind him one daughter namely, Sona Devi and his widow who inherited the property left by Sukhadeo Jha. The said Sona Devi sold the suit land to Raghunandan Mishra by virtue of a registered sale deed dated 28-06-1965 in the name of his sons and plaintiffs, thus, came in possession over the suit land. They got their names mutated also. Further case of the plaintiffs was that the defendant on the strength of an unregistered deed of gift and deed of adoption claimed to be the owner of the suit land and filed application before the revenue authorities which decision went in his favour. Thereafter, the defendant threatened the plaintiffs to dispossess them from the suit land which gave the plaintiffs the cause of action of preferring the suit.

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On the other hand the defendant filed his written statement stating that one Suryamani Jha had two sons, Kuldeo Jha and Sukhadeo Jha. Kuldeo Jha died in the year 1930 and

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Patna High Court SA No.519 of 2009 (19) dt.06-02-2013

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Sukhadeo Jha died in the year 1934. The defendant claimed that he inherited the property left by Sukhadeo Jha being his adopted son and also on the ground that he was nearest kin of Sukhadeo Jha and, therefore, by survivorship the defendant inherited the property of Sukhadeo Jha. The defendant also relied upon an unregistered deed of adoption dated 09-06-1934.

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On the basis of rival pleadings, learned trial court framed altogether eight issues including issues Nos. v and vi which are as follows:- (v)“ whether the survey entry with respect to suit land is wrong and (vi) whether the defendant inherited the suit land ”.

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The trial court on the basis of the evidence available on record reached to the finding that said Sukhadeo Jha died during the period between 1950-1952 and refused to accept the plea that he died in the year 1934 and held that Sukhadeo Jha died after 1937. The date of death is relevant in view of the date of coming into force the Hindu Women’s Right to Property (Amendment) Act, 1938. The said act came into force retrospectively with effect from 14-04-1934. The daughter and the widow of Late Sukhadeo Jha could have acquired right under section 3(3) of the Act only if the date of death of Late Sukhadeo Jha was found to be subsequent to coming into force the said Act. 9. Since the learned trial court held that Sukhadeo Jha died in the year between 1952-1954 as a corollary it held that widow and daughter of Sukhadeo Jha acquired right under section 3(3) of the Act.

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On the appeal preferred by the defendant, learned first appellate court upset the finding of the trial court after reappraising the evidence on record and came to a finding that the

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Patna High Court SA No.519 of 2009 (19) dt.06-02-2013

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said Sukhadeo Jha died in the year 1934 and as such Hindu Women’s Right to Property (Amendment) Act, 1938 was not applicable in the present case.

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On perusal of the judgments of the trial court and first appellate court, it appears that only dispute involved in the present case is as regards the date of death of Sukhadeo Jha. Learned trial court has held the period of date of death to be between 1952-1954 whereas the learned first appellate court has held the date of death to be in the year 1934. Thus, this is the only dispute involved in the present appeal. Over and above this, learned counsel for the appellants has not pointed out that findings of first appellate court are based on no material or contrary to material available on record. The judgement of the first appellate court cannot be said to be perverse. I am of the view that this appeal does not involve any substantial question of law and is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Smt. Shanti Devi @ Shanti Devi v. Sri Upendra Jha and Ors.

Case brief

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Smt. Shanti Devi @ Shanti Devi v. Sri Upendra Jha and Ors.

Case brief

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