S.C. Mohapatra, J.@mdashThe original respondent having died, the appellants applied for substitution of Smt. Prehialata Mohanty and Smt. Snehalata Mohanty as her legal representatives. Admittedly, they are the daughters of the deceased son of the sister of late Bhikari Charan Mohanty, the husband of the respondent. In other words, they are the heirs of the husband of the deceased-respondent. This application was registered as Misc. Case No. 294 of 1984. The application was objected to by one Brundaban Mohanty, who is brother''s son of the deceased-respondent. By order dt. 22nd April, 1985, the application for substitution was allowed subject to the objection of Brundaban to be delved into at the Final hearing of the Second Appeal.
2. During hearing of the Second Appeal an application for compromise under Order 23, Rule 3, Civil P.C. was filed by the appellants and the substituted legal representatives of the deceased respondent. Since recording of the compromise would depend upon the validity of the substituted respondents being the legal representatives of the deceased respondent, the said question is taken up first.
3. Admittedly, the dispute in this Second Appeal relates to the properties of Bhikari Charan Mohanty, husband of Nisamani, the deceased plaintiff-respondent. Although the relationship of Nisamani with Bhikari was disputed in the Title Appeal, it has been conclusively decided as fact that Nisamani was the validly married wife of Bhikari. Thus, on death of Bhikari, Nisamani became the full owner of the interest of Bhikari in the disputed properties.
4. Another issue in the suit was relating to adoption of Amarendra Kumar Nayak alias Mohanty, appellant 3 by Bhikari, which has been negatived. However, that question would not arrest the decision on the question of substitution.
5. Nisamani having claimed the properties as widow of Bhikari and the properties in dispute admittedly being of Bhikari succession to such properties in the hands of Nisamani would be governed u/s 15 of the Hindu Succession Act, since it is not disputed that the parties are Hindus. Section 15(2)(b) would be applicable to this case. It reads as follows :
"15. General rules of succession in the case of female Hindus -
(1)...
(2) Notwithstanding anything contained in Sub-section (1)-
(a)...
(b) any property inherited by a female Hindu from her husband or from her father-in-Law shall devolve, in the absence of any son 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 husband."
The clear language of this section excludes the claim of Brundaban, the brother''s son of deceased respondent.
6. The next question is whether Smt. Premalata Mohanty and Smt. Snehalata Mohanty are the heirs of late Bhikari, since u/s 15(2)(b) of the Hindu Succession Act the properties inherited by a female Hindu from her husband are to devolve upon the heirs of the husband. Rule 3 of Section 16 is to be attracted for this purpose. It reads as follows.:
"16. Order of succession and manner of distribution among heirs of a female Hindu -
The order of succession among the heirs referred to in Section 15 shall be and the distribution of the intestate''s property among those heirs shall take place according to the following rules, namely : --
Rule 1 :- ... ...
Rule 2 :-... ...
Rule 3 :-- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of Sub-section (1) and in subsection (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father''s or the mother''s or the husband''s, as the case may be, and such person had died intestate in respect thereof immediately after the intestate''s death."
Premalata and Snehalata being the daughters of the sister''s son of Bhikari are his cognates as defined u/s 3(1)(c) of the Hindu Succession Act. u/s 8(d) the properties of Bhikari dying intestate are to devolve in the absence of any agnate upon his cognates. This principle has been well settled in the decision reported in
7. Thus, on analysis, after the death of Nisamani, the plaintiff-respondent, the legal representatives to be substituted in respect of the litigation relating to the properties of her husband dying intestate are the cognates of Bhikari upon whom the properties would devolve and not the heirs of Nisamani. Substitution of Premalata and Snehalata is justified.
8. On my finding as above, the application for compromise between the appellants and the substituted legal representatives of the respondent becomes material. Mr. R.K. Mohapatra, the learned counsel who was appearing for the deceased respondent and for Brundaban claiming to be legal representative and to be substituted in place of the deceased respondent, submitted that the suit has abated on the whole and accordingly, the compromise should not be recorded. Normally I would not have given opportunity to hear Mr. Mohapatra, who has got no right, after my conclusion that Brundaban is not the legal representative of deceased Nisamani for whom Mr. Mohapatra was appearing. Since the question is a pure question of law, I thought it advisable to lake the assistance of Mr. R.K. Mohapatra, a learned member of the profession. Mr. Mohapatra''s submission is that the suit relating to the agricultural lands is already decided by the appellate court to have abated u/s 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. The Second Appeal, therefore, relates to the homestead land. According to Mr. Mohapatra, the suit relating to homestead land within the consolidation area would also abate and the second appeal having abated there would be no question of recording any compromise.
9. If it would have been a simple suit for partition there might have been some force in the argument of Mr. R.K. Mohapatra. The question in the second appeal, however, was the status of Nisamani and of Amarendra, appellant 3. The result of the entire suit would depend upon the determination of the status of the parties. It is now well settled that the relief claimed if would be granted by the authorities under the Consolidation Act the suit either abate u/s 4(4) or would not be maintainable u/s 51 of the Consolidation Act. When the question of status is involved in this suit the consolidation authorities could not have granted the relief claimed since the authorities under that Act have no jurisdiction to decide the status. Accordingly, the question of abatement of the suit relating to the agricultural land as well as the homestead land would depend upon the final decision in this, second appeal. Whether both the questions would be opened to be reversed can be brought within the scope of substantial question law.
10. Before going into the said question, the petition for compromise has been filed, No suit would abate without an order of abatement being recorded to that effect. The normal rule is that a civil court would not readily conclude that it has no jurisdiction. Keeping that in view when the parties have entered into compromise. I do not propose to order abatement of the suit which would open further litigation in the matter.
11. Mr. P. K. Misra, the learned counsel for the appellants and Mr. M. Misra, the learned counsel for the substituted legal representatives of deceased Nisamani, plaintiff-respondent, categorically state before me that the compromise is fair and reasonable. When both the parties accept the fairness and reasonableness of the compromise in the absence of any further material, interest of justice would be best served in case the compromise is recorded.
12. The effect of recording of compromise is that the impugned decree has no effect which is accordingly set aside. A decree in this second appeal is to be drawn up in terms of the compromise. Let the application for compromise be made a part of the decree.
13. In the result, the second appeal is allowed on compromise. Parties shall bear their own costs throughout.
