2020 apex court

  1. 2020 APEX COURT [10 ] –Partition suit by two daughters -The suit is predicated on two false facts as stated aforesaid: 1) that the father Kalpnath Rai died in 1938, an averment made with the oblique motive of bringing it within the protection of the Hindu Women’s Right to Property Act, 1937 (hereinafter called the Act of 1937), even though Kalpnath Rai passed away in 1921. It is impossible to conceive that the daughters did not know that the father passed away 17 years earlier! 2) that Kalpnath Rai was survived by a minor son Baikunth Rai who died in 1942, who had a wife Lagana Kuar, who died in 1994, without any progeny. The son Baikunth Rai was in fact survived by a daughter Talukraj, a fact not disclosed in the plaint.-Thus, the law prior to the Act of 1937 would apply, and as per the Mitakshara law, it is Baikunth Rai alone who would inherit the property of Kalpnath Rai, with Bataso Kuar having only a right of maintenance which would be only a charge on the property. We may take benefit of the Commentary of Mulla on Hindu Law, Volume I, 20th Edition, Page No.119, where the law prior to the Act of 1937 has been summarized as under: “Under the law prior to the Act, the widow of a person governed by Mitakshara had only a right of maintenance in respect of coparcenary property in which the husband had interest. In respect of separate property left by her husband, she had only the right of maintenance when the husband has left a son, grandson or a great-grandson. She could inherit his separate property only in the absence of these immediate heirs. All this was changed and her rights were augmented as pointed out above. As to the effect of adoption by her, see Rani Lachhmi Kunwar v. Shiam Singh (AIR 1949 11 786)” – Apex court held that The aforesaid being the position, what emerges by application of law in the factual situation is that on the demise of Kalpnath Rai in 1921, Baikunth Rai alone, though a minor, inherited the entire estate of Kalpnath Rai, with only a right of maintenance being given to Bataso Kuar. On the demise of Baikunth Rai in 1942, the widow Lagana Kuar became the limited owner of the property, as contemplated under Section 3 of the 1937 Act (the daughter not having a right under that Act). Bataso Kuar died in 1968, while Lagana Kuar died in 1994. The 1956 Act had come into being by then. Thus, Lagana Kuar’s right became her absolute right, which devolved on her daughter Talukraj and thereafter, on the legal representative(s) of Talukraj. That being the position, the original plaintiffs would have no right in the property and thus, we are in agreement with the view taken by the Courts below.