Pradip Kr.Dutt Vs. Siddartha Chatterjee and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1085440
CourtKolkata High Court
Decided OnSep-05-2013
JudgeNADIRA PATHERYA
AppellantPradip Kr.Dutt
RespondentSiddartha Chatterjee and ors.
Excerpt:
order sheet ga no.2362 of 201.cs no.241 of 201.in the high court at calcutta ordinary original civil jurisdiction original side pradip kr.dutt versus siddartha chatterjee & ors.before: the hon'ble justice patherya date :5. h september, 2013. mr.sarathi dasgupta, mr.dipendra nath chunder, advocates for plaintiff mr.gopal chandra ghosh, mr.s.k.mukhopadhyay, mr.s.khanra, advocates for defendant nos.1,2 and 3 the court : in a suit for partition, this application has been filed for interim relief. the application was opposed by the defendants and it has been submitted by counsel for the defendants that the plaintiff has no locus standi to file the instant suit as he is the widower of one kakaly dutt, who inherited 1/7th undivided share in the properties inherited by her from her father subodh kumar chatterjee and mother bivarani chatterjee. the said kakaly dutt has survived a daughter from her firs.husband and as the property of which partition is sought was inherited by her from her father or mother the plaintiff is barred by section 15(2)(a) of the hindu succession act, 1956 from filing the instant suit. the said submission has been opposed by counsel for the plaintiff by placing reliance on section 15(1) and section 16 of the hindu succession act so also air 200.cal 179. as by virtue of section 15(1)(a) the property of kakaly dutt will devolve upon the sons, daughters and husband of the female hindu, namely, kakaly dutt. having considered the submissions of the parties, section 15(2)(a) of the 1956 act starts with the words notwithstanding anything contained in sub-section 1 and is very specific in respect of devolution of properties of a female hindu inherited from her father or mother. by virtue of section 15(2)(a).the husband is excluded from inheriting any interest in a property inherited by a female hindu from her father or mother. even if the female hindu did not leave behind any son or daughter the property would revert to the heirs of the father and in no way would the husband derive an interest therein. in the instant case kakaly dutt has left behind her daughter, therefore, if any person would have a right to inherit kakaly dutta’s share would be her daughter and not her husband in view of the section 15(2)(a) of the 1956 act. by virtue of section 15, properties of a female hindu are classified under two heads. section 15(1) covers properties of a general class while sub-section 2 excludes those properties which she inherits from her father or mother. the property in respect of which partition is sought by the plaintiff belongs to the class mentioned in section 15(2)(a) of the 1956 act and, therefore, the suit filed by the plaintiff in its present form cannot be maintained and, therefore, no interim order can be passed and the application is, accordingly, dismissed. air 200.cal 179 is distinguishable on facts as the issue considered therein was under section 14 of the 1956 act and in no way dealt with section 15(2)(a).leave is granted to file vakalatnama. affidavit of service filed be kept on record. all parties concerned are to act on a signed photocopy of this order on the usual undertakings. (patherya, j.) sb
Judgment:

ORDER

SHEET GA NO.2362 OF 201.CS NO.241 OF 201.IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE PRADIP KR.DUTT Versus SIDDARTHA CHATTERJEE & ORS.BEFORE: The Hon'ble JUSTICE PATHERYA Date :

5. h September, 2013.

Mr.Sarathi Dasgupta, Mr.Dipendra Nath Chunder, Advocates for plaintiff Mr.Gopal Chandra Ghosh, Mr.S.K.Mukhopadhyay, Mr.S.Khanra, Advocates for defendant nos.1,2 and 3 The Court : In a suit for partition, this application has been filed for interim relief.

The application was opposed by the defendants and it has been submitted by counsel for the defendants that the plaintiff has no locus standi to file the instant suit as he is the widower of one Kakaly Dutt, who inherited 1/7th undivided share in the properties inherited by her from her father Subodh Kumar Chatterjee and mother Bivarani Chatterjee.

The said Kakaly Dutt has survived a daughter from her fiRs.husband and as the property of which partition is sought was inherited by her from her father or mother the plaintiff is barred by section 15(2)(a) of the Hindu Succession Act, 1956 from filing the instant suit.

The said submission has been opposed by counsel for the plaintiff by placing reliance on section 15(1) and section 16 of the Hindu Succession Act so also AIR 200.Cal 179.

As by virtue of section 15(1)(a) the property of Kakaly Dutt will devolve upon the sons, daughters and husband of the female hindu, namely, Kakaly Dutt.

Having considered the submissions of the parties, section 15(2)(a) of the 1956 Act starts with the words notwithstanding anything contained in sub-section 1 and is very specific in respect of devolution of properties of a female hindu inherited from her father or mother.

By virtue of section 15(2)(a).the husband is excluded from inheriting any interest in a property inherited by a female hindu from her father or mother.

Even if the female hindu did not leave behind any son or daughter the property would revert to the heirs of the father and in no way would the husband derive an interest therein.

In the instant case Kakaly Dutt has left behind her daughter, therefore, if any person would have a right to inherit Kakaly Dutta’s share would be her daughter and not her husband in view of the section 15(2)(a) of the 1956 Act.

By virtue of section 15, properties of a female hindu are classified under two heads.

Section 15(1) covers properties of a general class while sub-section 2 excludes those properties which she inherits from her father or mother.

The property in respect of which partition is sought by the plaintiff belongs to the class mentioned in section 15(2)(a) of the 1956 Act and, therefore, the suit filed by the plaintiff in its present form cannot be maintained and, therefore, no interim order can be passed and the application is, accordingly, dismissed.

AIR 200.Cal 179 is distinguishable on facts as the issue considered therein was under section 14 of the 1956 Act and in no way dealt with section 15(2)(a).Leave is granted to file vakalatnama.

Affidavit of service filed be kept on record.

All parties concerned are to act on a signed photocopy of this order on the usual undertakings.

(PATHERYA, J.) sb