Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010

Chattisgarh High Court Chattisgarh High Court Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010 Second Appeal No 438 of 2009 Suresh Darvade ...Petitioners Versus Arjun Ram Pandey ...Respondents ! Shri SC Verma counsel for the appellant ^ None appears for the respondent CORAM: Honble Shri Justice Prashant Kumar Mishra Dated: 19/02/2010 : Judgement ORAL ORDER Second Appeal under Section 100 of Civil Procedure Code. Heard on admission. (2) The respondent/plaintiff preferred a suit for declaration of title and possession of plaint Schedule-A property on the plea that one Jhadu Ram was his father and the original defendant No.1 Gendi Bai is his mother. Jhadu Ram was granted lease (patta) of the suit land and after his death, it was recorded in the name of Gendi Bai(Step-mother of the plaintiff). According to the plaintiff, after the death of Gendi Bai, he would succeed to the property, however, the original defendant No.2/appellant has encroached over the property and is in illegal possession, therefore, his title may be declared
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Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010

and possession may be delivered to him. (3) The defendant came up with a plea that the plaintiff is not the son of Gendi Bai but the he is son of Budhyarin Bai and that the suit property was a self acquired property of Gendi Bai, being her stridhan and it was never recoded in the name of Jhadu Ram. The defendant claims that he has purchased the property from Gendi Bai and that since the plaintiff has embraced Islam religion, he is disentitled to succeed the property and he cannot be the owner of the property belonging to Gendi Bai. (4) The trial Court decided all material issues against the defendant and in favour of the plaintiff to hold that the plaintiff is the owner of the suit property, the suit property belonged to Jhadu Ram and was not self acquired property or stridhan property of Gendi Bai, the defendant has failed to prove the execution of sale deed or valid and lawful alienation of the property by Gendi Bai in his favour, the possession of defendant No.2/appellant is illegal and that the plaintiff is entitled to recover the possession of the suit land from defendant No.2. The trial Court, while answering issue No.10 has categorically recorded the finding that the plaintiff's act of embracing Islam religion would not disentitle him to succeed to the property of his father. (5) The first appellate Court has confirmed all the
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Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010

findings recorded by the trial Court on all material issues and has thus concurred with the judgment and decree passed by the trial Court (6) Learned counsel for the appellant has vehemently argued that the findings recorded by the Courts below that the property belonged to Jhadu Ram is perverse. He submits that since the plaintiff ceased to be a Hindu, he could not take shelter of the provisions of the Hindu Succession Act to base his title on the suit property, therefore, the Courts below ought to have dismissed the suit. (7) On consideration of the arguments raised by the counsel for the appellant and on perusal of the records, this Court is not impressed with the arguments advanced by the learned counsel for the appellant. The document (Ex.P/3) is a grant made in favour of Jhadu Ram leasing the property in his favour. This document has been issued by the office of Collector under the signature of Additional Collector of the concerned district. Thus, the finding that the property belonged to the plaintiff's father Jhadu Ram is not perverse. (8) Once it is found that the property belongs to Jhadu Ram, the plaintiff being his son would be entitled to succeed his property and mere fact that he has embraced Islam religion afterwards would not disentitle him to succeed the property of this father. This Court may
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Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010

profitably quote AIR 1976 Calcutta 272 Para 8 as below: "8. Mr. Panda submits that the appellate Court was wrong to hold that a convert from Hinduism is not a disqualified heir. Mr. Panda refers to us Section 2 of the Act which provides that "this Act applies to any person, who is a Hindu by religion in any of its forms or developments and to any person who is a Buddhist, Jaina or Sikh by religion and to any other person who is not a Muslim, Christian, Parsi or Jew by religion..." Such being the provisions Mr. Panda submits that a Christian is not entitled to inherit the properties of the Hindu. We are unable to accept the contention of Mr. Panda. Section 2 simply provides the class of persons whose properties will devolve according to Hindu Succession Act. It is only the property of those persons mentioned in Section2 that will be governed according to the provisions of the Act. This Section has nothing to do with the heirs. This Section does not lay down as to who are the disqualified heirs. Sections 24, 25, 26 and 28 lay down the provisions how a person is disqualified. Section 24 provides "certain widows remarrying may not inherit as widows". Section 25 disqualifies a murderer from inheriting the property of the person murdered. Section 28 provides that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever. The most important section is Section 26. Section 26 reads as follows:"Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens." This Section therefore does not disqualify a convert. It only disqualifies the descendants of the converts who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives. Section 28 of the present Act discards almost all the grounds which imposed exclusion from inheritance and lays down that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity. It also rules out disqualification on any ground whatsoever excepting those expressly recognized by any provisions of the Act. The exceptions are very few and confined to the case of remarriage of certain windows. Another disqualification stated in the Act relates to a murderer who is excluded on principles of justice and public policy (Section 25). Change of religion and loss of caste have long ceased to be grounds of forfeiture of property and the only disqualification to inheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of such convert (Section 26). The disqualification does not affect the convert himself or herself. This being the position, we have no hesitation to hold that the respondent who is admittedly a brother of the deceased is entitled to succeed if there be no other preferential heir." (9) Thus provision contained in Section 26 of Hindu Succession Act is the only provision dealing with the right of succession of children born to a convert after the conversion, however this provision does not disqualify the convert himself from succeeding to the property of Hindu father. Thus, the argument to the contrary raised by the learned counsel for the appellant has no substance and it is accordingly rejected. (10) From what has been discussed above, it is apparent
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Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010

that the plaintiff has been able to prove the case for declaration of title and recovery of possession from the present appellant. (11) The Hon'ble Supreme Court in the case of State Bank of India and others vs. S.N.Goyal, (2008) 8 SCC 92, has laid down the principle as to what is a substantial question of law. Relevant paragraph of the judgment is extracted herein below: "13. Second appeals would lie in cases which involve substantial questions of law. The word "substantial" prefixed to "question of law" does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. "Substantial questions of law" means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case. Be that as it may." (12) In the present case, the appellant has not been able to raise any such issue which can be said to be substantial question of law within the meaning of the term as has been laid down by the Hon'ble Supreme Court in the above referred judgment. (13) In the result, the present second appeal under
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Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010

Section 100 of Code of Civil Procedure fails to raise any substantial question of law for determination, hence, it deserves to be and it is accordingly dismissed. JUDGE

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