Aparti Bewa Vs. Suna Stree

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....the learned lower appellate court decreed the suit holding that the plaintiff was entitled to the property after the death of hira.4. section 15(2)(a) of the hindu succession act of 1956 is as follows:'(2) notwithstanding anything contained in sub-section (1),-- (a) any property inherited by a female hindu from her father or mother shall devolve, in the absence of any ton or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein but upon the heirs of the father;' hira inherited the property from her father pathani. admittedly hira died unmarried. so the property shall devolve upon the heirs of pathani. amongst the heirs of pathani, the plaintiff comes first as coming under class ii, sub-class ii (4) -- sister, and chakra comes under sub-class iv (1). under section 9 of the act, among the heirs specified in the schedule, those in class i shall take simultaneously and to the exclusion of all 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.5. the plaintiff is therefore entitled to the disputed property. the appeal fails and is dismissed, but without costs of this court.