Smt. Bhagwati vs Smt. Laxmi Devi And Another
2013 Latest Caselaw 5449 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 26th November, 2013
+                               RFA No.550/2013

SMT. BHAGWATI                                                    ..... Appellant
                          Through: Mr. Manish Batra, Adv.

                                       versus
SMT. LAXMI DEVI AND ANOTHER                                        ..... Respondents
                  Through: None.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and preliminary decree for partition

dated 4th October, 2013 of the Court of Additional District Judge -

09,Central, Tis Hazari Courts, Delhi in Civil Suit No. 704/2008 (Unique

case I.D. No. 02401C0467672003) filed by the two respondents.

2. Though this first appeal is listed today before this Court for the first

time and is ordinarily required to be considered after requisitioning the trial

court record and issuing notice to the respondents but prima facie not finding

any merit in the appeal and not finding any need to follow the routine

procedure merely to pay lip service thereto, the counsel for the appellant has

been heard in extenso.

3. The respondent No.1 Smt. Laxmi Devi and one Smt. Somwati (on

whose death, Shri Dinesh Chand, present respondent No.2 and being the

husband of respondent no.1 Laxmi Devi was impleaded as her legal heir

under her Will) on 27th March, 1996 instituted the suit for partition from

which this appeal arises, pleading-

i. that late Shri Nanwa Singh was the sole and absolute owner of

property No.2/39, Roop Nagar, Delhi - 110007; and

ii. that the said Shri Nanwa Singh died on 10th March, 1966

leaving a Will dated 8th March, 1966 whereunder he

bequeathed 1/3rd share in the said property to his widow Smt.

Somwati, 1/3 share in favour of the appellant being his

daughter from first marriage and 1/3rd share in favour of the

respondent no.1 being also his daughter from his second wife

Smt. Somwati.

4. Smt. Somwati died during the pendency of the suit and the respondent

no.1/plaintiff claimed that Smt. Somwati had left a registered Will

bequeathing her 1/3rd share in the said property in favour of her daughter

respondent no.1 and her husband respondent no.2. The respondent no.1 thus

claimed to be the owner of one half share in the entire property and her

husband respondent no.2 was the owner of 1/6th share in the property and the

appellant was the owner of remaining 1/3rd share in the property.

5. The appellant contested the suit denying execution of any Will dated

8th March, 1966 by Shri Nanwa Singh and pleading that Smt. Somwati was

not the owner of the property and had no right to make any will with respect

thereto and the suit was bad for misrejoinder of respondent no.2 who had no

connection with the property and further pleading that the appellant and the

respondent no.1 were the only two legal heirs of late Shri Nanwa Singh and

each had equal rights in the property and were already in possession of half

share each of the suit property. The appellant also denied the Will dated 14th

March, 1989 by Smt. Somwati.

6. The learned Additional District Judge in the impugned judgment has

found/observed/held -

a. that the respondents/plaintiffs had not examined any attesting

witness of the Will dated 8th March, 1966 of Shri Nanwa Singh

which had thus not been proved;

b. that though the appellant in cross examination had put a

suggestion to the respondent/plaintiff No.1 that Smt. Somwati

was a rakhel of Shri Nanwa Singh and not his wife and the said

suggestion was denied but the said plea was not open to the

appellant since the appellant in her pleadings had admitted Smt.

Somwati to be the second wife of Nanwa Singh;

c. though the learned Additional District Judge has not given any

finding with respect to the Will of Smt. Somwati but finding the

respondent no.1 to be her sole heir, the respondent no.1 has been

held to be having 2/3rd share in the property and the

appellant/defendant to be having 1/3rd share therein; it has also

been observed that the respondent no.2 / plaintiff Shri Dinesh

Chand has not been able to establish any right for having any

share in the property;

d. though it is not so expressly set out in the impugned judgment

but it appears that what has prevailed with the learned Additional

District Judge is, that on the demise of Shri Nanwa Singh, the

property devolved upon his widow (being his second wife) Smt.

Somwati, his daughter (from his first wife) i.e. the appellant

herein and his second daughter (from his second wife Smt.

Somwati) respondent no.1 herein in equal shares and upon the

demise of Smt. Somwati, her 1/3rd share in the property devolved

upon her daughter respondent no.1, making her the owner of

2/3rd share in the property, with the appellant having the

remaining 1/3rd share.

7. The only argument urged by the counsel for the appellant is that under

Rule 2 of Section 10 of the Hindu Succession Act, 1956, the appellant and

the respondent no.1 being the only children of the deceased Shri Nanwa

Singh, get an equal share and thus the decree giving 2/3rd share to the

respondent no.1 is bad.

8. However the aforesaid argument loses sight of the fact that succession

opens on the date of demise and on the date of demise of Shri Nanwa Singh,

he was survived not only by the appellant and the respondent no.1 but also

by his widow Smt. Somwati. Rule 2 supra undoubtedly provides for

distribution of property equally among the surviving sons, daughters but

Rule 1, also provides for one share of the widow of the deceased.

Subsequent demise of the said widow would not change the position and

would not put her share back in the estate of her deceased husband and the

share so inherited by the widow would devolve in accordance with the rules

applicable to succession of her estate.

9. The counsel for the appellant has nothing further to add.

10. The only other question which needs to be considered is, whether the

said 1/3rd share of Smt. Somwati would be inherited by the respondent no.1

only.

11. The counsel for the appellant agrees that the appellant is the step

daughter of the said Smt. Somwati.

12. Under Section 15 of the Hindu Succession Act, the property of a

female Hindu dying intestate devolves firstly upon the sons and daughters

(including the children of any pre-deceased son or daughter) and the

husband. I have inquired from the counsel for the appellant, whether the

expression "son" or "daughter" in Section 15(1)(a) of the Hindu Succession

Act would include "step son" or "step daughter".

13. The counsel for the appellant has no answer.

14. However the question is no longer res integra. The Supreme Court in

Lachman Singh Vs. Kirpa Singh (1987) 2 SCC 547 has held that the word

"sons" and "daughters" in Section 15(1)(a) of the Hindu Succession Act

does not include step sons and step daughters. This Court recently in

judgment dated 3rd June, 2011 in RSA.No.164/2005 titled Raj Rani Vs.

Bimla Rani has again considered the question with reference to a large

number of judgments and in the light thereof, need is not felt to revisit the

question. The conclusion is inescapable that the 1/3rd share of Smt. Somwati

in the property, would be inherited, in the event of her intestacy, only by her

daughter i.e. the respondent no.1 and not by the appellant, who is the step

daughter of Smt. Somwati.

15. There is thus no error in the impugned judgment and decree. There is

no merit in the appeal; the same is dismissed. No costs. Decree sheet be

prepared.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 26, 2013 M.