Sham Lal & Ors. Etc. v. Amar Nath & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1954 :ind 1955 oi 1966. Appeals from the judgment aind decree dated May 30, J 963 of the Punjab High Court in Regular First Appeal No. 105 of 1957. A. K. Sen and R. K. Aggarwal, for the appellant (in C. A. No. 1954 of 1966) and respondents Nos. 5, 6, 8 and 9 (in C.A. No. 1955 of 1966). Bishan Narain, B. P. Maheshwari and R. K. Gupta, for the .appellants (\n C.A. No. 1955 of 1966) and respondents Nos. 2 to ·6 (in C.A. No. 1954 of 1966). Sarjoo Prasad, Rameshwar Prasad and A. D. Mathur, for respondent No. 1 (in both the appecls). S. M. Jain, for respondents Nos. 13(i) to 13(iv) (in C.A. No. 1954 oi 1966) and respondents Nos. 12(i) to 12(iv) (in C.A. No. 1955 of 1966). Hegde, J. The question of law that arises for decision in these appeals by certificate is whether the daughters of a pre-deceased son of a Hindu Woman are entitled to succeed to her stridhana ?

The trial court answered the question in the affirmative but the High Court i;n appeal came to the conclusion that they are not ·entitled to succeed to the estate in question. The material facts of this case are few. For a proper understanding of the facts of the case, it will be convenient to have before us the admitted pedigree of the family. It is as folfows : TwJRam I I Amar Nath (Plaintiff) JJgal Kishore Mst. Bindri widow dead. pami.!.i Rai Sri Kisiln (defendant No. T) widow Champiadevi (defendant No. 8) I Roshan Lal (dead) Shrl Bool Chand I Patu ~am Mst. Batji Beru.k Lal MooIChand (died is.crue less I Mom.!, Lal RamlSarup (adopted son defendant 10) Radha~ Mst. Dakhan (defendant 6) I .ndra I I Bi ban· Nathu Ram ,(died issue less) I Sham lat (defendant 9 adopted) Sheela /defendant Lila (Jfendant Chambcl! (defendant Balwanti No. 3 daughter) No.2 daughter) No. 1 daughter) daughter Sure~h Chand Sardh~ (defendant 4)

(defendant 5) . l~~~~~~-,1~~~~~~~~~~~~~1,.=-c-'--'-~~~_J_ Ktdar Nath Ram Chander Shoo Parshad I I Murar1 Lal I I I Nand Kishore (defendant No. 11 Basant Lal Rameshwar Dass Jag<tish (defen· I adopted) I (defendant dant No. 17) I (adopted sen Ragbbir·Singh No. 16 1 {defendant No. 15) I I MamanChand (defendant No. 14) Manpihul Singh (defendant No.12 Sher Singh (defendant No. 13) 4 92 SUPRl!ME COURT REPORTS tl970) 1 S.C.R. The finding of the trial court that the suit properties are the stridhana properlles of Barji was not contestea before the High Court. Jn llus Court at one stage a feeble allempt was made o,n behalf of the appellants to contest that finding. we did not permit that finding to be challenged as the same had not been cnallenged before Ule High Coun. Therefore we proceed on the basis of that finding. Barji died i;n September 1950.

Her husband Palu Ram had preaeceased her. lt appears that he died sometime in 1Y04. l'atu Ram's father Boo1 chand as weil as Palu Ram's brothers Tulsi Ram, Behari Lal and Hira Lal had predeceasecj, Barji. Patu Ram and Barji had a son by name J ugaJ Kish ore wno had predeceased Pa tu Ram lea ng behind him his widow Bindri who died in 1931. They had no children. Radha Kishan, the adopted sqn of Patu Ram and Barji died al :iut 20 years 'before the death of Barji leaving behmd him ljis widow, defendant No. 6. Radha Kishan had hve childr.en including defendants Nos. 1 to 3. through another wife. His son Roshanlal had died a few months before the death of Barji. His daughter Balwanti had predeceased Barji leavhtg behind her children defendants 4 and 5. Tulsi Ram's son Prahlad Rai had also predeceased Barji leavipg behind his widow defendant No. 8 and son defendant No. 7.

By the thne succession to the estate of Barji opened all the chilaren of Behari Lal and Hiralal had died but some of them had children and grand children, as seen from the pedigree. After the death of Barji; her properties came to the possession of defendant No. 6. De!endant No. 1 sued for the possession of those properties on the ground that she and her sisters are prefere,ntial heirs to the deceased Barji. To that suit she did not make Amar Nath, the plaintiff in the present suit, a party. Amar Nath's application for being impleaded as a party in that suit was opposed by the 1st defendant and the said application was ultimately rejected by the court. The dispute in that suit was referred to arbitration. The arbitrators upheld the claim of defendants Nos. 1 to 3. Thereafter the present suit was brought. In the High Court as well as in the trial court there was a triangular contest. The plaintiff claimed that he was exclusively entitled to the suit. properties, defendants Nos. 1 to 3 claimed that they are the nearest heirs to Barji; some of the other defendants contended that they succeeded to the suit properties as co-tenants with the plaintiff.

In this Court all the contesting defendants sail together. As mentioned earli~r, the trial court accepted the claim of defendants Nos. 1 to 3 but the High Court held that the plaintiff was exclusively entitled to the suit properties, he being the nearest heir to the deceased. That finding is contested both by defendants Nos. 1 to 3 .as well as by the other contesting defendants. That is how the aforementioned two appeals came to be filed. In arriving at its finding the High Court relied on the rules of succession found in paragraph 147 of Mulla's Principles of Hindu SHAM LAL v. AMAR NATH (Hegde, J.) Law (13fh Edn.). It came to the conclusion that those rules are exhaustive. On the basis of those rules, it ruled that defendants Nos. 1 to 3 wery not entitled to succeed to the estate of Barji.

So far as the other defendants are concerned it rejected their claim on the ground that as between the plaintiff and themselves the former is a preferential heir as he is the nearest in degree to Barji. It is the admitted case of the parties that the properties in question are not shu/ka and that Barji was married in one of the aoproved forms. Therefore while pronouncing on the competing claims made in this case, we must be guided by the order of succession prescribed in paragraph 147, if the same is correct and exhaustive. Paragraph 14 7 says : "Stridhana other than shulka passes in the following order : (1) unmarried daughter; (2) married daughter who is unprovided for; (3) married daughter who is provided for; ( 4) daughter's daughter; (5) daughter's son; (6) son; (7) son's son.

I.f there be none of these, in other words, if the woman dies without leaving any issue, her stridhana, if she was married in an approved form, goes to her husband, and after him, to the husband's heirs in order of their succession to him; on failure of the husband's heirs, it goes to her blood relations in preference to the Govecnment. But if she was married in an unapproved form, it goes to her mother, then to her father, and then· to the father's heirs and then to the husband's heirs in preference to the Government". The legal position is stated in ident!cal terms in Mayne's treatise on Hindu Law (Eleventh Eqn.-Paragrah 623, pages 744 to 746) as well as in the other text books on Hindu Law referred to at the time of the hearing. At this stage it may be mentioned that the correctness of the order of succession mentioned in paragraph 147 till we come to item No. 7 (son's son) was not challen~ed. The same is well settled by deciqed cases. It is not necessary to refer to those cases.

The only contention advanced on behalf of some of the defendants is that after son's sons come sons' daughters. Alternatively it was contended that the expression "son's son" includes "son's daughter''. We have to see whether these contentions , are well founded. The rules relating to· succession to stridhana enunciated in the text books are based on Yainyawalcya's text "her kinsmen take it, if she die without issue". This statement is elaborated by Vijnyaneswara in Mitakshara. The relevant portions thereof as translated by RT. Colebrooke are found in placita 8, 9, 10 and 11 in Section XI of his book ''Mitacshilr.a''. They read as follows : "8. A woman's property has been thus described. The author next propounds the distribution of it : 'Her kinsmen take it, if she die without issue'. 9.

If a woman die 'without issue' that is leaving no progeny; in other words, having no daughter nor daughter's daughter nor daughter's son, nor son, nor son's son; the woman's property, as above described, shall be taken by her kinsmen; namely her husband and the rest, as will be (forthwith) explained. I 0. The kinsmen have been declared generally to be competent to succeed to a woman's property. The author now distinguishes different heirs according to the diversity of the marriage ceremonies. The property of a childless woman, married in the form denominated Brahma, or in any of the four ( unblamed modes of marriage), goes to her husband : but, if she !~ave progeny, it will go to her (daughter's) daughters: nnd, in other forms of marriage (as the Asura & c.), it goes to her father (and mother, on failure of her own issue). 11.

Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajapatya, the (whole) property, as before described, belongs in the first place to her husband. On failure of him, it goes to his nearest kinsmen (sapindas) allied by funeral oblations. But, in the other forms of marriage called Asura, Gandharba, Racshasa and Pai- ~acha; the property of ·a childless woman goes to her parents, that is, to her father and m·Jther. . The succession devolves first (and the reason has been be.fore explained) on the mother, who is virtually( exhibited (first) in the elliptical pitrigami implying 'goes (gachhati) to both parents (pitarau;), that is to the mother and to the father'. On failure of them, their next of kin take the succession."

These passages have received interpretation at the hands of the Judicial Committee as well as the High Courts in India and the law is now settled as to the mode of succession to stridhana under Mitakshara until we reach soil's son. The controversy now is as to who should succeed to such an estate if none of the heirs mentioned in items Nos. 1 to 7 in · paragraph 147 of MuUa's H Hindu Law is in existence at the time of the death of the woman concerned. SHAM LAL v. AMAR NATH (Hegde, /.) Mr. A. K. Sen, learned Counsel for some of the defen· dants contested the correctness of Colebrooke's translation in certain respe&ts. He wanted us to examine the original text to find out whether the translation foood in placita 9 is correct ? The parties did not place before us either an admitted translation of the original text or even an official transl?tion. Colebrooke is a distinguished oriental scholar.

The Judicial Committee as well as the various High Courts in this country have relied on his translation of Mitakshara in dealing with the question of inheritance. Jogendra Nath Bhattacharya in his commentary on Hindu Law (2nd Bin.) deals with the order of succession under Mitakshzra to stridhana property in Chapter VI of that book. His translation of the relevant commentaries accords with those made by Colebrooke. To the same effect is the opinion expressed by Justice Chandavarkar in Bhimacharya Bin Venkappacharya v. Ramcharya Bin Bhimacharya('). Hence we are unable to agree with Mr. Sen that Colebrooke's translation does not bring out accurately the meaning of the relevant passages in Mitakshara. Colebrooke in his book 'Mitakshara' published in 1869 sets out the order of succession to a woman's stridhana properties at page 158 thus :

Maiden daughter I Unendowed married daughter 2 Endowed married daughter 3 Daughter's daughter 4 Daughter's son 5 Son 6 Grandson 7 Husband 8 If the contention of defendants is correct then son's daughter and not husband should have come after the grandson. But that is not the case. Mr. Bishan Narain, learned Counsel for defendants Nos. 1 , to 3 contended that the list given in Mitakshra is only illustrative and not exhaustive. He urged that Yajnyawalcya had stated that "a woman's property would devolve on her kinsmen if she died without issue" which means that it would devolve on her progeny which expression includes son's daughter as well. In this connection he also relied on Vijnyaneswara's commentary statin~ that the expression 'without issue' found in Yajnyawalcya text means "leaving no progeny". On the basis of these statements he contended that even according to Vijnyaneswara, the deceased woman's progeny would take her stridhana in preference to her kinsmen including her husband.

On the basis of this premise he proceeded to argue that the othe1 words used iri placita 9 viz. : (I) I.LR 33 Born. 452 "having no daughter nor daughter's daughter nor daughter's son nor son nor son's son" should be understood as merely being illustrations of the word "progeny". This contentiqp is opposed to the commentaries by Narada, Gautaina and the later commentators. More than that it runs counter to the decisions rendered by the Judicial Committee and the various Jligh Courts during the last over a century. It is now well settled that stridhana of a Hindu woman gove~ned by Mitakshra passes in the order mentioned in Mitakshra and the children of the deceased woman do not take the same as a body either jointly or as tenants in common. Only the heirs belonging to a class take the properties as tenants in common. Mr. Bishan Narain next contended that under Mitakshr· propinquity is the test of inheritance.

Therefore there is no reason why the deceased woman's husband's brother's son should take the properties in preference to her son's daughters. We do not think that m the matter of succession to stridhana propinquity · was ·considered by the law givers as the sole or even the principal test, otherwise there is no justification for a daughter's daughter. or a daughter's son to succeed to the estate of a woman in preference to her son. lt is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in .socio-religious matters particularly when our social laws were controlled by our religious beliefs and our law givers were our religious preceptors. It is for the legislature to step in and bring about harmony between the society and the laws governing it.

That is why our Parliament enacted several statutes in ·1955 to amend the Hindu Law in· various respects. We are unablo to accept the contention of Mr. Bishan Narain that the expression son's son includes son's daughter as according to the rules of interpretation the masculille includes the feminine. That rule of interpretation is inapplica~ in the present case as daughter's daughter succeeds to the stridhana ln preference to daughter's son. The order of succession prescn'bed clearly rules out the application of that rule of interpretation. Mr. Sen in support of his contention that on a true interpretation of the relevant passages in 'Mitakshra', defendants Nos. 1 to 3 are preferential heirs to deceased Barji, relied on certain passages in some of the decided cases. First he referred to the decision of the Patna High Court in Kumar Raghava Surendra Sahi v. Babui Lachmi Kuer( 1 ).

Therein the disp•1te related to the succession to the properties left by a maiden and not by a married (IJ 1939I.L.R.18 Pat. Sqo (I) L.R. 33 I.A. 176, SHAM LAL v. AMAR NAtH (Hegde, J.) woman. 'J'he rules relating to the succession to the stridhana of a deceased maiden are wholly different from those relating to succession to the stridhana of a married woman. Therefore the observations made in regard to those rules have no relevance for our present purpose. He next invited our attention to certain passages in the decision of the Judicial Committee in Bai Kesserbai v. Hunsraj Morarji and ani'.( 1). Therein the dispute was between Bai Kesserbai the surviving co-widow of the deceased Bachubai's husband Koreji Haridass, Hunsraj Morarji the separated nephew of Koreji, .being the son of his eldest brother, who predeceased Bachubai and Bai Monghibai, the widow of a younger brother of Koreji named Ranchordass Haridass.

The question for consideration by the Judicial Committee was as to the true scope of the latter part of the placitwn 9 in Colebrooke's Mitakshara which says "if a woman die without issue, that is, leaving no progeny .... the. woman's property ........... , shall be taken by her kinsmen namely her husband and the rest as will be forthwith explained". · Their Lordships observed that there can be no reasonable doubt that accordiii.g to Mitakshara definition of sapinda, husband and wife are sapindas to each other and the co-widow of the husband of the deceased was the nearest sapinda of the deceased woman's husband and hence entitled to succeed to the estate in question .. This decision again does not bear on the point under considera- .tion. Lastly Mr. Sen contended that in view of the Hindu Woman's Rights to Property Act (XVIII of 1937), it must be held that defendants l to 3 are nearer heirs to the deceased than the plaintiff.

This contention was negatived by the High Court on the basis of the .rule laid down by this Court in Annagouda Nathgouda Patil v; Court of Wards and anr. (') wherein this Court dealing with Act Il of 1929 observed : "The question is whether the provisions of this Act can at all be invoked to detennine the heirs of a Hindu female in respect of her stridhan property. The objept of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying inteState 'are entitled to succeed to· his estate; and section I ( 2) expressly lays down that 'the Act applies only to persons who but for the passing of . this Act would have been subj~c! to the .Law of Mitakshara ~ respect of the proV1S10ns herem enacted, and it applies to such persons m respect only of the property of males not held in coparcenary and not disposed of by will.' Thus the scope. of the Act is limited. It governs succession only to the separate property 0f a Hindu male who "-dies . intestate.

It does not alter the law as regards th• • (2) [19S21 S.C.R. 208. SUPREME COl'RT REPORTS (1970] 2 s.C.it devolution of any other kind of property owned by a Hindu male and does not purport lo regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these .four relations statutory heirs under the Mitakshara Law under all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property \n respect to which it is sought to be applied is his separate property." Similar would be the position under the Hindu Woman's Right to Property Act, 1937. Section 3(1) of tha•. Act which pr;ivides for the devolution of the property reads thus :

"When a Hindu governed by the Dayabhaga School of Him.du Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary Jaw dies intestate leaving separate property his widow or if there is more than one widow all his widows togeth r shall, subject to the provisions of sub-section (3) be entitled \n re~pect of pr:perty in respect of which he dies intestate to the same share as a son ...... " From this provision it is clear that Hindu Women's Right to Property Act, 1937 applies only to the separate . •Jperty left by a Hindu male: It does not apply e"ther to the coparcenary property or to the property of a Hindu female. For the reasons mentioned above these appeals fail and they are dismissed with costs-advocates' fee one set. V.P.S. Appeals dismisud. -L2Sup.CJ/70