Raja General Agency Rep. by Its Partner/Manager, Shri R.S. Punekar and ors. Vs. Union of India (Uoi), Ministry of Food and Consumers Affairs, Department of Sugar and Edible Oil and ors. - Court Judgment

Excerpt:
- sections 8 & 14: [k.n. keshavanarayana, j] suit for partition - one s died intestate leaving behind him his wife and five sons - he had got the suit schedule property as his share in a partition between him and his brothers - wife (widow) made a will in respect of entire property in favour of great grandson, as an absolute owner - she died pending suit for partition -trial court held the property was separate property of s and on his death his wife became the absolute owner and that the will executed in favour of d-5 (great grandson) is valid and dismissed the suit - first appellate court reversed the finding of the trial court and held that all the five sons are entitled to 1/5 share each and that deceased d-1 (widow) was not the absolute owner - second appeal held, since the plaint schedule properties were the separate and exclusive properties of deceased s upon, his intestate death, his properties are inherited by all his class-i heirs as per section 8 of the hindu succession act. even if the original defendant no.1 has enjoyed the plaint schedule properties along with her husband after the partition, she did not acquire any exclusive right over the properties. at best she was entitled to enjoy the same till her lifetime. to a case of this nature, as rightly held by the lower appellate court, section 14 of the hindu succession act has no application. no doubt, as per sub-section (1) of section 14 of the hindu succession act, any property possessed by a female hindu, acquired either before or after commencement of the act, should be held by her as full owner thereof and not as a limited owner, explanation to sub-section explains the term property. according to this section, property includes moveable and immovable properties acquired by a female hindu by inheritance, or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person. whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as streedhana immediately before the commencement of this act. as noticed above, the plaint schedule properties were not inherited by defendant no. 1 nor it was transferred to her by any modes known to law. admittedly, it was allotted to the share of her husband at a partition and her husband died intestate. soon after the death of her husband, the estate left behind by him will have to be shared equally by his class-i heirs as directed by section 8. therefore, the trial court is in error in applying the provisions of section 14 of the hindu succession act to the present case. under these circumstances, the lower appellate court is justified in reversing the judgment of the trial court in this regard. merely because the 5th defendant (great grant son) has successfully established the execution and attestation of the will, it does not ipso-facto establish that he was succeeded to all the properties. the testatrix should have right over the properties bequeathed so that the beneficiary under the will succeeds to the properties. having regard to the fact that the original defendant no.1was not the absolute owner of the properties mentioned under the will, she could not have bequeathed the entire extent of the properties in favour of the 5th defendant under the will. there is no dispute that upon the death of s, defendant no.1 being the widow was entitled to succeed to the properties of her husband along with her sons and daughter. therefore, she succeeded to 1/6th share in the properties left behind by her husband. the question is as to whether she could bequeath her undivided 1/6th share in the plaint schedule properties under a will? section 30 of the hindu succession act, no doubt, empowers an hindu to dispose of the properties by will or other testamentary disposition of any property, which is capable of being so disposed of by him or by her in accordance with the provisions of the indian succession act, 1925. explanation to section 30 explains as to what is the interest of a hindu which can be disposed of by will or other testamentary disposition. according to this explanation, only the interest of a hindu in a mitakshara co-parenary property which can be disposed of by him or her by way of will or other testamentary dispositions. in the case on hand, in the case on hand, it is clear that the plaint schedule properties were not mitakshara coparcenary properties, as according to the contentions of the contesting parities, the plaint schedule properties were the exclusive and separate properties of s having been allotted to him towards his share, under the partition. therefore, section 30 of the hindu succession act has no application to the facts of the case. upon the death of s, original defendant no.1 became entitled to 1/6th share in the plaint schedule properties and each of her children were entitled to similar shares. thus, she became the co-owner along with her children in respect of the plaint schedule properties. her share was definite and only the division by meets and bounds had been postponed. under these circumstances, the submission of the learned counsel for the appellant that the original defendant no.1 could dispose of her undivided 1/6th share in plaint schedule properties by way of a will as provided in section 59 of the indian succession act has great force and deserves to be accepted. therefore, there is no difficulty in holding that the 1st defendant had right to dispose of her undivided 1/6th share in the plaint schedule properties by way of a will. the will of d-1 to the extent of 1/6th share is valid and the four sons and lrs of one son who was deceased will get 1/6th share each. as regards the alienation made by one of the son (plaintiff-4) while effecting partition by metes and bounds to the extent possible the share of plaintiff-4 to be identified in item-b (which he has sold). indian succession act (39 of 1925), section 59:will a testator who is having an undivided interest can dispose of her share by way of a will. section 30 of hindu succession act has no application. section 63: will interpretation testatrix claiming to be the absolute owner of entire property bequeathing in favour of her great grandson finding of the court that she is entitled to 1/6th share held, the will is valid to the extent of her 1/6th share. ordern.k. patil, j.1. petitioners in these petitions have sought for quashing the order called 'the edible oils packaging (regulation) order, 1998, which was published in the gazette of india extraordinary dated , 17th september 1998 vide notification dated 17th august 1998 and also as amended by gsr 710(e) dated 30th november 1998 and gsr 37(e) dated 4th february 2000 vide annexure a issued by the first respondent further, they have sought for quashing the intimation dated 15th june 2007, dated 15th june 2007, 30th july 2007 and 5th october 2007 respectively issued by the respondents 3 to 6 vide annexures d to d4 they have also sought for a direction, direct the second respondent to issue notification exempting the edible oils from the provisions of the 'edible oils packaging (regulation) order, 1998, as provided under clause 3 of the order, 1998.2. i have heard learned counsel appearing for petitioners and learned additional government advocate appearing for respondents 2 to 6.3. learned counsel appearing for both the parties, at the outset, submitted that, the subject matter involved in this case is directly covered by the order passed by this court dated 17th june 2009 in w.p. no. 1939 of 2008 and connected matters (bangalore oil and oil seeds association and ors. v. union of india and ors.). therefore, they submitted that, following the said order, the instant writ petitions filed by petitioners may also be disposed of.4. the submission made by learned counsel appearing for both the parties, as stated above, is placed on record.5. in the light of the submission made by learned counsel appearing for both the parties as stated supra, the writ petitions filed by petitioners are disposed of, following the order passed by this court dated 17th june 2009 in w.p. no. 1939 of 2008 and connected matters (bangalore oil and oil seeds association and ors. v. union of india, bangalore and ors.) and for the reasons stated therein, reserving liberty to the petitioners to submit their additional detailed representations along with the necessary documents to substantiate the relief sought in their representations for exemption of registration for running their business, within a period of two weeks from the date of receipt of copy of this order.on receipt of such representations, the competent authority of respondents is directed to receive the same and pass appropriate orders, after affording reasonable opportunity to these petitioners personally or through their counsel and dispose of the same, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of the representations to be submitted by these petitioners.all other grounds urged in these writ petitions are left open.learned additional government advocate is permitted to file memo of appearance on behalf of respondents within three weeks from today.

Judgment:
ORDER

N.K. Patil, J.

1. Petitioners in these petitions have sought for quashing the order called 'The Edible Oils Packaging (Regulation) Order, 1998, which was published in the Gazette of India Extraordinary dated , 17th September 1998 vide Notification dated 17th August 1998 and also as amended by GSR 710(E) dated 30th November 1998 and GSR 37(E) dated 4th February 2000 vide Annexure A issued by the first respondent Further, they have sought for quashing the intimation dated 15th June 2007, dated 15th June 2007, 30th July 2007 and 5th October 2007 respectively issued by the respondents 3 to 6 vide Annexures D to D4 They have also sought for a direction, direct the second respondent to issue Notification exempting the edible oils from the provisions of the 'Edible Oils Packaging (Regulation) Order, 1998, as provided under Clause 3 of the Order, 1998.

2. I have heard learned Counsel appearing for petitioners and learned Additional Government Advocate appearing for respondents 2 to 6.

3. Learned Counsel appearing for both the parties, at the outset, submitted that, the subject matter involved in this case is directly covered by the order passed by this Court dated 17th June 2009 in W.P. No. 1939 of 2008 and connected matters (Bangalore Oil and Oil Seeds Association and Ors. v. Union of India and Ors.). Therefore, they submitted that, following the said order, the instant writ petitions filed by petitioners may also be disposed of.

4. The submission made by learned Counsel appearing for both the parties, as stated above, is placed on record.

5. In the light of the submission made by learned Counsel appearing for both the parties as stated supra, the writ petitions filed by petitioners are disposed of, following the order passed by this Court dated 17th June 2009 in W.P. No. 1939 of 2008 and connected matters (Bangalore Oil and Oil Seeds Association and Ors. v. Union of India, Bangalore and Ors.) and for the reasons stated therein, reserving liberty to the petitioners to submit their additional detailed representations along with the necessary documents to substantiate the relief sought in their representations for exemption of registration for running their business, within a period of two weeks from the date of receipt of copy of this order.

On receipt of such representations, the competent authority of respondents is directed to receive the same and pass appropriate orders, after affording reasonable opportunity to these petitioners personally or through their Counsel and dispose of the same, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of the representations to be submitted by these petitioners.

All other grounds urged in these writ petitions are left open.

Learned Additional Government Advocate is permitted to file memo of appearance on behalf of respondents within three weeks from today.