Mangala & Anr vs. Dhuruwa & Other AIR 2013 Chhattisgarh 5
The late Seera Singh had three sons, namely;
(a) Amru- wife Soniya
(b) Chiter Singh – wife Hirabai
(c) Shriram – Daughter Kevrabai
According to the appellants/plaintiffs, the defendant – Dhuruwa had no title over the undivided property of late Seera Singh. They had further pleaded that Dhuruwa had taken possession of 5.55 acres of land and was attempting to take possession of the entire property. It was also pleaded that Dhuruwa was not the son of Kewrabai, therefore, he was not entitled to any share in the property and that the will executed in his favour was forged and fabricated.
According to the defendants, Amru (son of late Seera Singh) had died prior to coming into force of Hindu Succession Act, 1956 leaving no male descendant. His widow – Soniabai was only having limited interest in the property and was only entitled to be maintained out of the corpus of Hindu Undivided Family property. After the death of Amru, his share in the property devolved upon surviving sons of late Seera Singh, namely, Chiter Singh and Shriram. Chiter Singh died issueless, and therefore, his undivided share in the property devolved upon Shriram and thus Shriram became full owner of the entire property. Kewrabai was the daughter of Shriram and was married to one Shyam Ratan by custom of ‘Chudi’. Prior to her Chudi marriage with Shyam Ratan, her marriage was solemnised with Shiv Prasad. Out of wedlock with Shiv Prasad, she had a daughter – Santrabai and Santrabai was blessed with a son, namely, Hemal. Kewrabai had executed a will in favour of defendant No. 1 – Dhuruwa. The Honourable Court observed as per Section 9 of the Act of 1956, among the heirs specified in the Schedule, those in class-I shall take simultaneously and to the exclusion of other heirs; those in the first entry in class-II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession.
Admittedly, Chiter Singh left behind only two heirs, one Soniyabai, widow of his brother – Amru and Shriram, i.e., his brother. Both were class-II heirs. Brother’s name finds place in the second entry whereas the name of brother’s widow finds place in sixth entry. As per section 9 of the Act of 1956, heirs in the first entry in class-II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry and so on in succession. Therefore, the share of Chiter Singh in the property, after his death, would devolve upon only in favour of Shriram, and not in favour of Soniyabai.
Admittedly, Kewrabai was only class-I legal heir of Shriram. After his death, Shriram’s 2/3rd share in the property, being only class-I legal heir of late Shriram, would devolve solely upon her. Kewrabai had executed a Will in favour of the respondent No. 1 – Dhuruwa, which was found to be duly proved by both the Courts below, therefore, after her death, the property in the hands of Kewrabai would devolve upon Dhuruwa and Dhuruwa became co-owner of the property to the extent of 2/3rd share, i.e., share of Shriram in the joint property. Kewrabai, being the only heir of Shriram, was competent to dispose of her 2/3rd undivided interest in the property, as per section 30 of the Act of 1956, even to the exclusion of her legal heir.
