Orissa High Court
Smt. Sandhya Rani Sahoo vs Smt. Anusaya Mohanty .... Opposite ... on 2 April, 2025
Author: Chittaranjan Dash
Bench: B. P. Routray, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 04 of 2024
Smt. Sandhya Rani Sahoo .... Appellant
@ Mohanty Mr. B. Baug,
Senior Advocate
-versus-
Smt. Anusaya Mohanty .... Opposite Parties
Mr. Bibekananda Bhuyan,
Senior Advocate
Mr. S.S. Bhuyan, Advocate
CORAM:
THE HON'BLE MR. JUSTICE B. P. ROUTRAY
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 02.04.2025
Chittaranjan Dash, J.:
1. By means of this appeal, the Appellant has challenged the
judgment dated 12.12.2023 passed by the Learned Judge, Family
Court, Bhubaneswar, in C.P. No. 576/2017, declaring the
Respondent as the legally wedded wife of Late Kailash Chandra
Mohanty and his legal heir, thereby entitling her to inherit his
ancestral and self-acquired property.
2. The background facts of the case are that the Respondent,
Anusaya Mohanty, initiated C.P. No. 576 of 2017 before the Family
Court, Bhubaneswar, seeking a declaration that she is the legally
wedded wife of Late Kailash Chandra Mohanty and his rightful
legal heir. The Respondent claimed that their marriage took place
on 05.06.1966 as per Hindu rites and customs, and they lived
together, raising two sons. She further alleged that the Appellant,
Sandhya Rani Sahoo @ Mohanty, was merely a nurse who worked
with the deceased and had no legitimate marital relationship with
him. The Family Court decreed the suit on 29.10.2021, declaring
the Respondent as the legally wedded wife and legal heir of Late
Kailash Chandra Mohanty, entitling her to inherit his ancestral and
self-acquired property. Aggrieved by the judgment, the Appellant
filed MATA No. 96 of 2021 before this Court, challenging the
decision on the grounds that she was not given a fair opportunity to
present her case. The Appellant contended that her lawyer had
passed away during the proceedings, and due to the disruptions
caused by the COVID-19 pandemic, she was unaware of the
developments, leading to the case being decided in her absence.
This Court, in its order dated 13.07.2023, observed that there was
reasonable cause for the Appellant's non-appearance and held that
the Family Court's judgment was passed without affording the
Appellant proper opportunity to contest the matter.
Consequently, this Court set aside the judgment dated
29.10.2021 and remitted the matter back to the Family Court,
Bhubaneswar, for fresh adjudication. Additionally, this Court issued
an interim arrangement concerning the disputed property.
Considering the advanced age of both parties with the Respondent
approaching 80 years and the Appellant around 70 years, this Court
directed that, until the final outcome of the case, the usufructs
arising from the property would be shared in a 60:40 ratio, with
60% in favour of the Respondent, Anusaya Mohanty, and 40% in
favour of the Appellant, Sandhya Rani Sahoo @ Mohanty.
Following the remission, the Family Court reheard the matter and
passed a fresh judgment on 12.12.2023, once again declaring the
Respondent as the legally wedded wife of Late Kailash Chandra
Mohanty and his legal heir, thereby reaffirming her right to inherit
his ancestral and self-acquired property. As a result of the Family
Court's decision, the Appellant has preferred the present
Matrimonial Appeal, challenging the judgment dated 12.12.2023.
3. Mr. B. Baug, learned Senior Counsel appearing on behalf of
the Appellant, contends that the Family Court lacked jurisdiction to
entertain the suit, arguing that the Respondent's prayer for a
declaration of marital status should have been brought before the
Civil Court under Section 34 of the Specific Relief Act, rather than
under Section 7 of the Family Courts Act, 1984. He further asserts
that the suit is barred by limitation, as it was filed more than three
years after the death of Late Kailash Chandra Mohanty, making it
time-barred under Article 58 of the Limitation Act, 1963.
Additionally, Mr. Baug challenges the Family Court's finding that
the Respondent is the sole legal heir of the deceased, contending
that the children born from the Appellant's relationship with Late
Kailash Chandra Mohanty are legitimate under Section 16 of the
Hindu Marriage Act, 1955, and are entitled to inherit their father's
self-acquired property as Class-I heirs under the Hindu Succession
Act, 1956. Mr. Baug asserts that the Family Court erred by failing
to explicitly recognize this right in its final order. Consequently, he
prays for the setting aside of the impugned judgment and proper
consideration of her claims and those of her children as legal heirs
of Late Kailash Chandra Mohanty. Mr. Baug has placed his reliance
on the following decisions - Samar Kumar Roy vs. Jharna Bera
reported in (2008) 1 SCC 1; Harmohan Senapati vs. Smt. Kamala
Kumari Senapati and Anr. Reported in AIR 1979 ORISSA 51;
Renubala Moharana and anr vs. Mina Mohanty and ors reported
in AIR 2004 SC 3500; Hanamanthappa and Anr vs.
Chandrashekharappa and Ors reported in (1997) 9 SCC 688; Sri
Amar Chand Inani vs. The Union of India reported in (1973) 1
SCC 115; State of Punjab vs. K.R. Erry and Sobhag Rai Mehta
And State of Punjab vs. Shri Khaushal Singh, P.A.S. reported in
(1973) 1 SCC 120; Oil and Natural Gas Corp. Ltd. Vs. Modern
Construction and Company reported in (2014) 1 SCC 648.
4. Mr. S. S. Bhuyan, the learned counsel appearing on behalf
of the Respondent, contends that the Family Court rightly exercised
its jurisdiction under Section 7(1)(b) of the Family Courts Act,
1984, as the suit sought a declaration of her marital status, which
falls squarely within the Family Court's purview. He further argues
that the suit is not barred by limitation, as the period spent pursuing
the matter before the Civil Court, which returned the plaint for lack
of jurisdiction, should be excluded under Section 14(2) of the
Limitation Act, 1963. Additionally, Mr. Bhuyan asserts that the
Family Court correctly declared the Respondent as the legally
wedded wife and legal heir of Late Kailash Chandra Mohanty,
based on ample oral and documentary evidence. While
acknowledging that the Appellant's children are legitimate under
Section 16 of the Hindu Marriage Act, Mr. Bhuyan argues that this
does not affect the Respondent's status as the lawful wife or her
right to inherit the ancestral property. He prays for the dismissal of
the present appeal, asserting that the Family Court's findings are
just and proper. Mr. Bhuyan has placed his reliance on the
following decisions - Balram Yadav vs. Fulmaniya Yadav reported
in AIR 2016 SC 2161; Hasina Bano vs. Mohd. Ehsan reported in
2024 SCC OnLine AI 5194; Jitendra Kumar Choudhary vs.
Banku Sahoo reported in FAO No. 27 of 2013.
5. The Family Court, in its findings, held that the Respondent
is the legally wedded wife of Late Kailash Chandra Mohanty and
his rightful legal heir. The Court found that the Respondent
established her marriage with the deceased through credible oral
and documentary evidence, including voter identity cards, service
records, and letters exchanged between them. It ruled that the suit
was not barred by limitation, applying Section 14 of the Indian
Limitation Act, 1963, to exclude the time spent pursuing the matter
in the wrong forum. On the issue of jurisdiction, the Court
concluded that the matter fell within the purview of Section 7(1)(b)
of the Family Courts Act, 1984, as it concerned the declaration of
marital status. Furthermore, the Court determined that the
Appellant's alleged marriage to the deceased was invalid under the
Hindu Marriage Act, 1955 (hereinafter referred to as "HMA") as
the Respondent's marriage was still subsisting at the time.
However, it acknowledged that the Appellant's children would be
considered legitimate and would have inheritance rights.
Consequently, the Court declared the Respondent as the legally
wedded wife and lawful heir, entitled to inherit both the ancestral
and self-acquired properties of Late Kailash Chandra Mohanty.
6. In course of final hearing, this Court, as per the order dated
17.03.2025, found it appropriate to outline the Appeal in the
following three issues: -
(i) Whether the Respondent's prayer for declaration of her
marital status is maintainable before the learned Judge,
Family Court under Section 7 of the Family Courts Act, or
whether she was required to approach the Civil Court under
Section 34 of the Specific Relief Act?
(ii) Whether the suit filed by the Respondent before the learned
Judge, Family Court is barred by limitation, having been
filed more than three years after the death of Late Kailash
Chandra Mohanty?
(iii) Whether the direction of the learned Judge, Family Court,
depriving the issues born from the Appellant (Second Wife)
from the properties of Late Kailash Chandra Mohanty, is
violative of Section 16 of the Hindu Marriage Act?
Both the parties have submitted their replies addressing
these issues in the meantime, and it is now incumbent upon this
Court to scrutinise the matter independently and render its findings
accordingly.
Issue (i) - Whether the Respondent's prayer for declaration of her
marital status is maintainable before the learned Judge, Family
Court under Section 7 of the Family Courts Act, or whether she
was required to approach the Civil Court under Section 34 of the
Specific Relief Act?
7. The Appellant contends that the relief sought by the
Respondent, a declaration of her status as the legally wedded wife
of Late Kailash Chandra Mohanty does not fall within the
jurisdiction of the Family Court. According to the Appellant, the
proper recourse for such a declaration lies under Section 34 of the
Specific Relief Act, 1963, which governs suits for declaratory
relief. The Appellant argues that the Family Court, being a creature
of statute, derives its jurisdiction strictly from the Family Courts
Act, 1984, and any matter outside its express mandate must be
brought before a Civil Court of competent jurisdiction. The
Appellant relies on the principle that jurisdiction cannot be inferred
but must be expressly conferred, and since the Respondent's suit
primarily seeks a declaration of marital status, it should have been
adjudicated by a Civil Court.
Conversely, the Respondent asserts that the Family Court
had the necessary jurisdiction under Section 7(1)(b) of the Family
Courts Act, 1984. Section 7(1)(b) empowers Family Courts to
decide suits or proceedings for "a declaration as to the validity of a
marriage or as to the matrimonial status of any person." The
Respondent contends that her prayer to be declared the legally
wedded wife of Late Kailash Chandra Mohanty squarely falls
within this provision. Moreover, the Respondent points out that the
Appellant never raised the issue of jurisdiction in the initial stages
before the Family Court or even during the earlier MATA No. 96 of
2021, and is therefore estopped from raising it at this stage. The
Respondent further submits that the matter was initially filed before
the Civil Court but was returned under Order VII Rule 10 of the
CPC for want of jurisdiction, reinforcing the argument that the
Family Court is the appropriate forum.
8. This Court, after carefully considering the rival submissions
and examining the statutory provisions, finds that Section 7(1)(b) of
the Family Courts Act, 1984, is broad enough to encompass the
relief sought by the Respondent. The provisions reads as follows:
"7. Jurisdiction.--(1) Subject to the other provisions
of this Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by
any district Court or any subordinate civil Court under
any law for the time being in force in respect of suits
and proceedings of the nature referred to in the
Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district Court or, as
the case may be, such subordinate civil Court for the
area to which the jurisdiction of the Family Court
extends.
Explanation.-- The suits and proceedings referred to in
this sub-section are suits and proceedings of the
following nature, namely:--
(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may be,
annulling the marriage) or restitution of conjugal rights
or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of
any person;
Additionally, Section 8 of the Family Courts Act reinforces
the exclusivity of the Family Court's jurisdiction by expressly
barring the jurisdiction of Civil Courts in matters covered under
Section 7. The provision reads as:
8. Exclusion of jurisdiction and pending
proceedings.--Where a Family Court has been
established for any area,--
(a) no district Court or any subordinate civil Court
referred to in sub-section (1) of section 7 shall, in
relation to such area, have or exercise any jurisdiction
in respect of any suit or proceeding of the nature
referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or
exercise any jurisdiction or powers under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in
the Explanation to sub-section (1) of section 7 and
every proceeding under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974),--
(i) which is pending immediately before the
establishment of such Family Court before any district
Court or subordinate Court referred to in that sub-
section or, as the case may be, before any magistrate
under the said Code; and
(ii) which would have been required to be instituted or
taken before such Family Court if, before the date on
which such suit or proceeding was instituted or taken,
this Act had come into force and such Family Court
had been established, shall stand transferred to such
Family Court on the date on which it is established.
Finally, Section 20 of the Family Courts Act provides that
the Act has an overriding effect over any other law that may be
inconsistent with it:
20. Act to have overriding effect.--The provisions of
this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for
the time being in force or in any instrument having
effect by virtue of any law other than this Act.
9. The Hon'ble Supreme Court, in Balram Yadav vs.
Fulmaniya Yadav reported in AIR 2016 SC 2161, has categorically
held the following -
"Under Section 7(1) Explanation (b), a Suit or a
proceeding for a declaration as to the validity of both
marriage and matrimonial status of a person is within
the exclusive jurisdiction of the Family Court,
since under Section 8, all those jurisdictions covered
under Section 7 are excluded from the purview of the
jurisdiction of the Civil Courts. In case, there is a
dispute on the matrimonial status of any person, a
declaration in that regard has to be sought only before
the Family Court. It makes no difference as to whether
it is an affirmative relief or a negative relief. What is
important is the declaration regarding the matrimonial
status.
Section 20 also endorses the view which we have taken,
since the Family Courts Act, 1984, has an overriding
effect on other laws."
10. The language of the above-mentioned provisions leaves no
room for ambiguity. A suit seeking a declaration of marital status
whether it affirms or denies the existence of a valid marriage
squarely falls within the ambit of the Family Court's jurisdiction.
Once the Family Court jurisdiction is established over a matter, any
attempt to bypass it would undermine the very purpose of
establishing Family Courts, which is to provide a specialised forum
for resolving family disputes efficiently. In the present case, the
core of the matter is a declaration of marital status, which aligns
squarely with Section 7(1)(b) of the Family Courts Act. The Family
Court had the proper jurisdiction under Section 7(1)(b) of the Act to
entertain the Respondent's prayer for a declaration of her marital
status. The provision clearly vests the Family Court with the
authority to decide matters relating to the validity of a marriage and
the matrimonial status of any person.
11. The Appellant's argument that the Respondent ought to
have approached the Civil Court under Section 34 of the Specific
Relief Act is misplaced, as the Family Courts Act is a special law
enacted to deal with disputes of a matrimonial nature, including the
determination of marital status. The principle of lex specialis
derogat legi generali i.e. meaning special law prevails over general
law applies in this context, giving precedence to the Family Courts
Act over the general provisions of the Specific Relief Act.
Furthermore, the Family Court's jurisdiction is not merely
concurrent but exclusive for matters enumerated under Section 7,
thereby precluding the jurisdiction of Civil Courts in such cases.
Moreover, the fact that the Respondent initially approached
the Civil Court and the plaint was returned under Order VII Rule 10
CPC further reinforces the conclusion that the Family Court was the
correct forum. The Appellant's failure to challenge the jurisdiction
in the earlier proceedings further weakens her case, as jurisdictional
objections must be raised at the earliest stage of litigation.
12. Therefore, this Court finds no merit in the Appellant's
contention regarding lack of jurisdiction. The Family Court validly
exercised its jurisdiction under Section 7(1)(b) of the Family Courts
Act, and the Appellant's objection regarding maintainability is,
accordingly, untenable and stands rejected.
Issue (ii) - Whether the suit filed by the Respondent before the
learned Judge, Family Court is barred by limitation, having been
filed more than three years after the death of Late Kailash
Chandra Mohanty?
13. The Appellant contends that the Respondent's suit is barred
under the Limitation Act, 1963. According to the Appellant, Article
58 of the Limitation Act prescribes a three-year limitation period
for suits seeking a declaration, starting from the date when the right
to sue first accrues. The Appellant argues that the cause of action
arose on 12.07.2012, the date of Late Kailash Chandra Mohanty's
death. Therefore, the Respondent's suit, filed on 24.07.2017, is
time-barred, as it was filed more than five years after the cause of
action arose. The Appellant further submits that the Respondent
failed to seek condonation of delay under Section 5 of the
Limitation Act and did not provide any explanation for the delay,
making the suit liable for dismissal on this ground alone.
Conversely, the Respondent asserts that the suit is not
barred by limitation, relying on the principle that time spent
prosecuting a case in the wrong forum should be excluded from the
calculation of the limitation period. The Respondent initially filed
C.S. No. 1998 of 2013 before the Civil Judge (Senior Division),
Bhubaneswar, seeking a declaration of her marital status and legal
heirship. However, the Civil Court returned the plaint on
13.01.2016, citing lack of jurisdiction. The Respondent
subsequently challenged this order by filing CMP No. 278 of 2016,
which was dismissed on 10.05.2017. Thereafter, the Respondent
filed the present suit before the Family Court on 24.07.2017. The
Respondent contends that the period from the institution of C.S. No.
1998 of 2013 until the dismissal of CMP No. 278 of 2016 should be
excluded under Section 14(2) of the Limitation Act, which allows
for the exclusion of time spent in bona fide pursuit of a claim before
a Court that lacked jurisdiction. The Respondent further submits
that, as per settled law, there is no prescribed period of limitation
for seeking a declaration of marital status before the Family Court.
14. Upon careful consideration of the rival submissions, it is
imperative to analyse the interplay between the Limitation Act,
1963, and the Family Courts Act, 1984, in the context of suits
seeking a declaration of marital status.
Article 58 of the Limitation Act prescribes a three-year
limitation period for suits seeking a declaration, starting from the
date when the right to sue first accrues. In the present case, the
Appellant asserts that the cause of action arose on 12.07.2012, the
date of Late Kailash Chandra Mohanty's death, and therefore, the
suit filed on 24.07.2017 is barred by time. However, this Court
finds that such a rigid application of Article 58 overlooks certain
critical legal principles.
15. Firstly, Section 14(2) of the Limitation Act provides relief
in cases where a party has pursued a matter in good faith before a
Court that ultimately lacked jurisdiction. It reads as:
"In computing the period of limitation for any suit, the
time during which the plaintiff has been prosecuting
with due diligence another civil proceeding, whether in
a Court of first instance or of appeal or revision,
against the defendant, shall be excluded where the
proceeding is founded upon the same cause of action
and is prosecuted in good faith in a Court which, from
defect of jurisdiction or other cause of a like nature, is
unable to entertain it."
In the present case, the Respondent initially filed C.S. No.
1998 of 2013 before the Civil Judge (Senior Division),
Bhubaneswar, seeking a declaration of her marital status and legal
heirship. However, the Civil Court returned the plaint on
13.01.2016, holding that it lacked jurisdiction to entertain the
matter. The Respondent subsequently filed CMP No. 278 of 2016,
challenging the order of the Civil Court, which was dismissed on
10.05.2017. Only thereafter did the Respondent file the present suit
before the Family Court on 24.07.2017. Therefore, the period spent
in prosecuting the earlier suit and the subsequent challenge before
the Civil Court ought to be excluded under Section 14(2) of the
Limitation Act. This principle has been consistently upheld by the
Hon'ble Supreme Court, which recognises that parties should not be
penalised for diligently pursuing their claims before a forum that
ultimately lacks jurisdiction.
Secondly, a conjoint reading of Section 7 of the Family
Courts Act and Section 29(3) of the Limitation Act lends support to
the view that proceedings before the Family Court are not subject to
a strict limitation period. Section 7(1)(b) of the Family Courts Act
expressly empowers the Family Court to decide suits or
proceedings for "a declaration as to the validity of a marriage or as
to the matrimonial status of any person." Importantly, the Family
Courts Act does not prescribe any limitation period for such
proceedings. Section 29(3) of the Limitation Act clarifies that
where a special law provides for a different limitation period or
excludes the application of the Limitation Act, the special law will
prevail. In the absence of a specific limitation period under the
Family Courts Act, the general principles of delay and laches apply,
rather than the rigid timelines under the Limitation Act.
16. A party seeking to establish or refute marital status cannot
be barred from seeking such a declaration merely because a certain
period has elapsed, particularly when the dispute has long-standing
consequences for inheritance, legitimacy, and personal law rights.
The concept of "continuing cause of action" applies in cases
involving marital status. The Respondent's right to assert her status
as the legally wedded wife of Late Kailash Chandra Mohanty is not
a right that extinguishes over time, as it forms the foundation of her
claims over his property and other legal entitlements. As long as the
Respondent's status remained contested by the Appellant, the cause
of action continued. Therefore, even assuming that no statutory
exclusion under Section 14(2) applies, the continuing nature of the
dispute sustains the Respondent's right to seek a declaration.
17. In light of these considerations, this Court finds that the
Respondent's suit before the Family Court is not barred by
limitation. The time spent in prosecuting the matter before the Civil
Court and the subsequent challenge before the High Court must be
excluded under Section 14(2) of the Limitation Act. Moreover,
given the absence of any specific limitation period under the Family
Courts Act and the continuing nature of the dispute, the
Respondent's claim remains legally tenable. Accordingly, the
Appellant's objection regarding limitation lacks merit and stands
rejected.
Issue (iii) - Whether the direction of the learned Judge, Family
Court, depriving the issues born from the Appellant (the Second
Wife) from the properties of Late Kailash Chandra Mohanty, is
violative of Section 16 of the Hindu Marriage Act, 1955?
18. In view of this issue, the Appellant's concern is that in the
final order section of the Family Court's judgment, it is only
declared that the Respondent is the legal heir of late Kailash
Chandra Mohanty and entitled to inherit his ancestral and self-
acquired property. However, despite discussion in the judgment, the
Family Court has not clarified in the final order that the children
born from the Appellant have a right over both ancestral and self-
acquired property of the deceased.
19. In this regard, it is pertinent to examine the right of
inheritance of such children under the Hindu Marriage Act, 1955,
and the Hindu Succession Act, 1956 (hereinafter referred to as
"HSA"). Section 16 of the HMA confers legitimacy on children
born from void and voidable marriages, ensuring that they are
entitled to inherit their parents' property. Under the HSA, legitimate
children including those legitimised under Section 16 of the HMA,
fall under the category of Class-I heirs, giving them an undisputed
right to inherit the self-acquired property of their parents.
20. To better understand, we may refer to the case in the matter
of Revanasiddappa & Anr. versus Mallikarjun & Ors., reported in
2023 LiveLaw (SC) 737, wherein the Hon'ble Supreme Court has
dealt with the issue as to whether the children born from void or
voidable marriages, though conferred legitimacy under Section
16(1) and (2) of the HMA, could claim rights in ancestral property
or as coparceners under the HSA. Held as under: -
"54. We now formulate our conclusions in the
following terms:
(i) In terms of sub-section (1) of Section 16, a child of
a marriage which is null and void under Section 11 is
statutorily conferred with legitimacy irrespective of
whether (i) such a child is born before or after the
commencement of Amending Act 1976; (ii) a decree of
nullity is granted in respect of that marriage under the
Act and the marriage is held to be void otherwise than
on a petition under the enactment;
(ii) In terms of sub-section (2) of Section 16 where a
voidable marriage has been annulled by a decree of
nullity under Section 12, a child 'begotten or
conceived' before the decree has been made, is deemed
to be their legitimate child notwithstanding the decree,
if the child would have been legitimate to the parties to
the marriage if a decree of dissolution had been passed
instead of a decree of nullity;
(iii) While conferring legitimacy in terms of sub-
section (1) on a child born from a void marriage and
under sub-section (2) to a child born from a voidable
marriage which has been annulled, the legislature has
stipulated in subsection (3) of Section 16 that such a
child will have rights to or in the property of the
parents and not in the property of any other person;
(iv) While construing the provisions of Section 3(1)(j)
of the HSA 1956 including the proviso, the legitimacy
which is conferred by Section 16 of the HMA 1955 on
a child born from a void or, as the case may be,
voidable marriage has to be read into the provisions of
the HSA 1956. In other words, a child who is
legitimate under sub-section (1) or subsection (2) of
Section 16 of the HMA would, for the purposes of
Section 3(1)(j) of the HSA 1956, fall within the ambit
of the explanation 'related by legitimate kinship' and
cannot be regarded as an 'illegitimate child' for the
purposes of the proviso;
(v) Section 6 of the HSA 1956 continues to recognize
the institution of a joint Hindu family governed by the
Mitakshara law and the concepts of a coparcener, the
acquisition of an interest as a coparcener by birth and
rights in coparcenary property. By the substitution of
Section 6, equal rights have been granted to daughters,
in the same manner as sons as indicated by sub-section
(1) of Section 6;
(vi) Section 6 of the HSA 1956 provides for the
devolution of interest in coparcenary property. Prior to
the substitution of Section 6 with effect from 9
September 2005 by the Amending Act of 2005, Section
6 stipulated the devolution of interest in a Mitakshara
coparcenary property of a male Hindu by survivorship
on the surviving members of the coparcenary. The
exception to devolution by survivorship was where the
deceased had left surviving a female relative specified
in Class I of the Schedule or a male relative in Class I
claiming through a female relative, in which event the
interest of the deceased in a Mitakshara coparcenary
property would devolve by testamentary or intestate
succession and not by survivorship. In terms of sub-
section (3) of Section 6 as amended, on a Hindu dying
after the commencement of the Amending Act of 2005
his interest in the property of a Joint Hindu family
governed by the Mitakshara law will devolve by
testamentary or intestate succession, as the case may
be, under the enactment and not by survivorship. As a
consequence of the substitution of Section 6, the rule of
devolution by testamentary or intestate succession of
the interest of a deceased Hindu in the property of a
Joint Hindu family governed by Mitakshara law has
been made the norm;
(vii) Section 8 of the HSA 1956 provides general rules
of succession for the devolution of the property of a
male Hindu dying intestate. Section 10 provides for the
distribution of the property among heirs of Class I of
the Schedule. Section 15 stipulates the general rules of
succession in the case of female Hindus dying
intestate. Section 16 provides for the order of
succession and the distribution among heirs of a female
Hindu;
(viii) While providing for the devolution of the interest
of a Hindu in the property of a Joint Hindu family
governed by Mitakshara law, dying after the
commencement of the Amending Act of 2005 by
testamentary or intestate succession, Section 6 (3) lays
down a legal fiction namely that 'the coparcenary
property shall be deemed to have been divided as if a
partition had taken place'. According to the
Explanation, the interest of a Hindu Mitakshara
coparcener is deemed to be the share in the property
that would have been allotted to him if a partition of
the property has taken place immediately before his
death irrespective of whether or not he is entitled to
claim partition;
(ix) For the purpose of ascertaining the interest of a
deceased Hindu Mitakshara coparcener, the law
mandates the assumption of a state of affairs
immediately prior to the death of the coparcener
namely, a partition of the coparcenary property
between the deceased and other members of the
coparcenary. Once the share of the deceased in
property that would have been allotted to him if a
partition had taken place immediately before his death
is ascertained, his heirs including the children who
have been conferred with legitimacy under Section 16
of the HMA 1955, will be entitled to their share in the
property which would have been allotted to the
deceased upon the notional partition, if it had taken
place; and
(x) The provisions of the HSA 1956 have to be
harmonized with the mandate in Section 16(3) of the
HMA 1955 which indicates that a child who is
conferred with legitimacy under sub-sections (1) and
(2) will not be entitled to rights in or to the property of
any person other than the parents. The property of the
parent, where the parent had an interest in the property
of a Joint Hindu family governed under the Mitakshara
law has to be ascertained in terms of the Explanation to
sub-section (3), as interpreted above."
21. The Hon'ble Supreme Court held that Section 16(3) of the
HMA restricts the property rights of such children to only the
property that comes in the share of the parents out of the joint
family property besides self-acquired property. To be more specific,
the judgment further clarifies that where the parent was a Hindu
Mitakshara coparcener, the explanation to Section 6(3) of the HSA
comes into play, that reads as -
6. Devolution of interest in coparcenary property.
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of
2005), his interest in the property of a Joint Hindu
family governed by the Mitakshara law, shall devolve
by testamentary or intestate succession, as the case
may be, under this Act and not by survivorship, and the
coparcenary property shall be deemed to have been
divided as if a partition had taken place and,
(a) the daughter is allotted the same share as is allotted
to a son;
(b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at
the time of partition, shall be allotted to the surviving
child of such pre-deceased son or of such pre-deceased
daughter; and
(c) the share of the pre-deceased child of a pre-
deceased son or of a pre-deceased daughter, as such
child would have got had he or she been alive at the
time of the partition, shall be allotted to the child of
such pre-deceased child of the pre-deceased son or a
pre-deceased daughter, as the case may be.
Explanation.--For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have
been allotted to him if a partition of the property had
taken place immediately before his death, irrespective
of whether he was entitled to claim partition or not.
This means that before the devolution of the parent's
property, a notional partition must be presumed to have occurred
immediately before the parent's death, thereby determining the
parent's share in the coparcenary property. Once the share of the
deceased parent is ascertained through this notional partition, the
legal heirs including children born from void or voidable marriages
are entitled to their rightful share in such property.
22. Accordingly, we find merit in the Appellant's concern and
deem it necessary to modify the Family Court's order by
incorporating a specific clarification. This Court holds that the
children born from the Appellant and Late Kailash Chandra
Mohanty are obviously entitled to inherit his self-acquired property.
Additionally, where the deceased parent was a Mitakshara
coparcener, such children shall also inherit their share in the
ancestral property, limited to the portion that would have been
allotted to their parent upon a notional partition before their death.
The Family Court's order shall be modified to reflect this
clarification.
23. In view of the above discussions, this Court finds no merit
in the Appellant's other contentions. As a necessary corollary, the
jurisdiction exercised by the learned Judge, Family Court under
Section 7(1)(b) of the Family Courts Act, is just and proper.
Further, in view of our discussion as above, on the issue of
limitation, the suit is also not barred by limitation. Furthermore, the
Family Court has correctly declared the Respondent as the legally
wedded wife of Late Kailash Chandra Mohanty and his legal heir,
entitled to inherit his ancestral and self-acquired property. As
already discussed, the judgment dated 12.12.2023 by the Judge,
Family Court, Bhubaneswar, is modified to the extent that the
Appellant's children have the right to inherit the self-acquired
property of Late Kailash Chandra Mohanty, as well as their rightful
share in his ancestral property, subject to the portion that would
have been allotted to him upon a notional partition before his death,
as per section 6(3) of the HSA.
24. Accordingly, the Appeal is dismissed on merit, and the
impugned judgment is upheld with the aforementioned
modification.
(Chittaranjan Dash)
Judge
B.P. Routray, J. I agree.
(B. P. Routray)
Judge
A.K.Pradhan/Bijay
Location: HIGH COURT OF ORISSA
