PRAFULLA.C.PANT, J. - (1.) BY means of this writ petition, the writ petitioners have challenged vires of entry IV of class II heirs mentioned in the Schedule of Hindu Succession Act, 1956. It is further prayed that terms "deceased brothers son", "deceased brothers daughter", "deceased sisters son" and "deceased sister daughter" be taken to have been included in the entry II of class II of Schedule of the Hindu Succession Act, 1956.
(2.) BRIEF facts of the case are that the petitioners and respondent No. 4 are related by following pedigree : - JUDGEMENT_24_AIR(MEGH)_2014.jpg As such, petitioners are nephews of respondent No. 4. Shyamal. Late Dr. Pulin Behari Deb who was ancestor of the petitioners and respondent No. 4 was a medical practitioner who left his properties after his death in Shillong. It is alleged by the petitioners that respondent No. 4 removed certain furnitures and articles from the rooms occupied by Subodh Chandra Deb (deceased) on which the petitioners served a notice dated 4 th August, 2010 on respondent No. 4 to get back the furnitures to their original position. In response to the said notice, respondent No.4 sent a reply dated 17 -08 -2010 (Annexure II) stating that due to the death of Subodh Chandra Deb in the year 1984, the property of (L) Pulin Behari Deb, after the death of Smti. Konika Deb (widow of Subodh Chandra Deb) on 21 -2 -1997, devolved on surviving brother and sister namely, Sudhir Chandra Deb and Sukumari Dutta to exclude the nephew and nieces through another brother Probodh Chandra Deb. Section 9 of Hindu Succession Act, 1956 provides that among the class II heirs, first the relatives mentioned in the first entry are to be preferred to those mentioned in the second entry and those mentioned in the second entry are required to be preferred to those mentioned in the third entry and so on. It is pleaded in the writ petition that the classification between sons of pre -deceased brother and other brothers is unreasonable and arbitrary. It is further pleaded that the children of the pre -deceased brother should have been placed equally with the brothers and sisters in the same entry in the matters of intestate of succession of properties. Challenging the entry IV of class II on the ground of its being violative of article 14 of the Constitution of India, this writ petition was filed to set aside the entry IV of class II heirs in the Schedule of Hindu Succession Act, 1956 and to declare that "deceased brothers son", "deceased brothers daughter", "deceased sisters son", "deceased sisters daughter" are included in entry II of class II of heirs in the Schedule of Hindu Succession Act, 1956.
(3.) IN the affidavit -in -opposition filed on behalf of respondent No.4, Shyamal Deb, the relationship between the parties (petitioners and respondent No.4) is not denied. However, it is stated that the writ petition suffers from delay and laches. It is further stated that the writ petition is hit by non -joinder of necessary parties. It is pleaded that there is no infirmity in the constitutional validity of the provisions of Hindu Succession Act, 1956. It is contended that source of classification between brothers and sons of deceased brothers is based on Shruti, Smriti and Customs of Hindu law. It is further stated that the codified Hindu Succession Law (Hindu Succession Act, 1956) aims at insuring a uniform civil code of personal law of Hindus removing the gender inequality in matters of inheritance. It is pleaded that the distinct characteristic of Bengal School (Dayabhaga) is that succession is governed by capacity for conferring spiritual benefits in Parvana Sradha as under: - "a) Pinda or an entire cake, called an undivided obligation which is offered to three immediate paternal ancestors and the three immediate maternal ancestors. The one making the offer of the pinda and the one receiving it become sapindas of one another. b) Pinda -lepas or remnants of the pinda which cling to the hand while mixing the ingredients of which the pindas are composed, called divided obligations and are offered to three paternal ancestors next above those to whom pindas are offered. The one making the offer of the pinda -lepas and the one receiving it become sakulyas of one another. c) libations of water are offered to seven paternal ancestors next above those to whom pinda -lepas are offered. The one offering the libations of water and the one receiving it become samanodakas of one another." ;