Arunachala Gounder vs Ponusamy - Supreme Court Judgment 2022

Arunachala Gounder vs Ponusamy  - Supreme Court Judgement 2022

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6659 OF 2011
ARUNACHALA GOUNDER (DEAD) BY LRS. ….. APPELLANT(S)
VERSUS
PONNUSAMY AND ORS. ….. RESPONDENT(S)
J U D G M E N T
KRISHNA MURARI, J.
Challenge has been laid in this Civil Appeal to the judgment and
order dated 21.01.2009 passed by the High Court of Judicature at Madras
(hereinafter referred to as ‘High Court’) dismissing a regular First Appeal
being A.S. No. 351 of 1994 filed under Section 96 of the Code of Civil
Procedure, 1908, challenging the judgment and decree dated 01.03.1994
rendered by the Trial Court dismissing Original Suit No. 295 of 1991 for
partition filed by the appellant herein, claiming 1/5th share in the suit
properties.
1
2. The following genealogy of the parties is necessary to be taken note
of for appreciating their claims and contentions :­
Gurunatha Gounder
Marappa Gounder (Son) Ramasamy Gounder (Son)
 (Died on 11.05.1949) (Predeceased his brother
Marappa Gounder)

Kupayee Ammal (Daughter)
(Died issueless in 1967)
Guruntha Gounder Thangammal Ramayeeammal Elayammal Nallammal
 (Son) (Daughter) (Deceased Daughter) (Daughter) (Daughter)
 (Plaintiff in the (Defendant No. (Defendant
 suit since deceased) 5 in the suit) No. 6 in
 the Suit)
1. Ponnuswamy Arunachala Gounder
2. G. Thangammal (Deceased, represented by LRs)
3. Papayee 1. Venkatachalam
4. Kannammal 2. A. Mottaiyappan
(Defendants 1 to 4) (Since deceased represented
 by appellants 1 & 2 herein)
 1. Samathuvam
2. Kannayan
 (Defendants 8 & 9 in the suit)

2
3. Suit for partition was filed by Thangammal, daughter of Ramasamy
Gounder, claiming 1/5th share in the suit property on the allegations that
the plaintiff and defendant nos. 5 and 6, namely, Elayammal and
Nallammal and one Ramayeeammal are sisters of Gurunatha Gounder, all
the five of them being the children of Ramasamy Gounder. The said
Ramasamy Gounder had an elder brother by the name of Marappa
Gounder. Ramasamy Gounder, predeceased his brother Marappa
Gounder who died on 14.04.1957 leaving behind the sole daughter by the
name of Kuppayee Ammal who also died issueless in 1967. Further case
set up by the plaintiff/appellant was that after the death of Marappa
Gounder, his property was inherited by Kuppayee Ammal and upon her
death in 1967, all the five children of Ramasamy Gounder, namely,
Gurunatha Gounder, Thangammal (Original Plaintiff now represented by
legal heir), Ramayeeammal, Elayammal and Nallammal are heirs in equal
of Kuppayee and entitled to 1/5th share each.
4. Gurunatha Gounder, died leaving behind defendant nos. 1 to 4
(Respondents herein) as heirs and legal representatives. Ramayeeammal
died leaving behind defendants 7 to 9. The plaintiff-appellant,
Thangammal, died leaving behind, appellant nos. 1, 3 and 4 herein and
Appellant no. 1, Arunachala Gounder, since having died is represented by
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her legal representatives appellant no. 1, Venkatachalam and appeallant
no. 2, A. Mottaiyappan.
5. The defence set up by the defendant-respondents was that Marappa
Gounder died on 11.05.1949 and not on 14.04.1957 as alleged by the
plaintiff-appellant and as per the provisions of Hindu Law prevailing prior
to 1956, Gurunatha Gounder was the sole heir of Marappa Gounder and
accordingly, he inherited the suit properties and was in possession and
enjoyment of these properties and after his death the respondents herein,
were continuing as lawful owners.
6. It is an undisputed fact between the parties that the property in
question i.e., the suit property, was independently purchased by Marappa
Gounder in the year 1938 through the process of a Court auction and thus,
it was his independent property. However, there was a issue between the
parties in respect of the date of death of Marappa Gounder. The plaintiff –
appellant asserted the date of death as 14.04.1957, whereas the
defendant-respondent pleaded the date of death as 15.04.1949.
7. The Trial Court after considering the evidence brought on record of
the case by the parties concluded that Marappa Gounder died on
4
15.04.1949 and thus, the suit property would devolve upon the sole son of
deceased Ramasamy Gounder, the deceased brother of Marappa
Gounder by survivorship and the plaintiff-appellant had no right to file the
suit for partition and, accordingly, dismissed the suit.
8. The findings recorded by the Trial Court particularly in respect of the
date of death of Marappa Gounder in 1949 was confirmed by the High
Court in the first appeal and the decree dismissing the suit for partition was
affirmed holding that the property would devolve upon the defendant by
way of survivorship.
9. We have heard Shri P.V. Yogeswaran, learned counsel for the
appellant and Shri K.K. Mani, learned counsel for the respondents.
Arguments on behlaf of Appellants
10. Shri P.V. Yogeswaran, learned counsel for the appellant submits that
since the property was purchased through Court auction sale by the
Marappa Gounder on 15.12.1938, hence, it is his independent property
and it was never considered as a joint family property, as such on death of
Marappa Gounder, this property would devolve by succession upon his
daughter, Kupayee Ammal, who died in the year 1967. He further
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submitted that under the law of Mitakshara, the right to inheritance
depends upon propinquity i.e., proximity of relationship. Since, the
daughter has closer proximity of relationship, she would inherit the
property from the father instead of the father’s brother’s son and daughter.
11. He further points out that there are three classes of heirs recognized
by Mitakshara, namely, (a) Gotrajasapindas, (b) Samanodakas and
(c)Bandhus. The first class succeeds before the second and the second
succeeds before the third. To support the contentions, he made a
reference to Mulla Hindu Law 23rd Edition. He also submitted that under
the Hindu Law, a daughter is not disqualified to inherit in separate property
of her father and when a male Hindu dies without a son leaving only
daughter, his separate property would devolve upon the daughter through
succession and the property will not devolve upon brother’s son through
survivorship and the Courts below have wrongly applied the principles of
Hindu Law and dismissed the suit. In support of his contention, he cited
references from various commentaries which we shall deal with at
appropriate place.
Arguments on behlaf of Respondents
12. Shri K.K. Mani, learned counsel representing respondents submitted
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that the property in question was purchased by Marappa Gounder in Court
auction sale out of the family funds and thus, it was a joint property, and on
his death, since he had no male heir, the defendant as a coparcener
succeeded to the estate. He further submitted that the Trial Court after
scrutinizing the evidence brought on record by the parties came to the
conclusion that the paternal uncle of plaintiff, Marappa Gounder, died prior
to the enforcement of Hindu Succession Act, 1956 and, therefore, the
plaintiff and other sisters of the plaintiff were not the heirs as on the date of
death of Marappa Gounder in the year 1949 and thus, plaintiff was not
entitled to the partition of 1/5th share in the suit properties, and thus, the
suit was rightly dismissed. He further submits that when the date of death
of Marappa Gounder, was confirmed to be in the year 1949, the
Succession to his properties would open in the year 1949 when Kupayee
Ammal, the daughter of Marappa Gounder, was not having any right to
inherit the property left by her deceased father. The only heir available at
the time of death of Marappa Gounder was Guranatha Gounder, the son of
Ramasamy Gounder, who was none other than the father of the
Defendants 1 to 4. Once the properties of Marappa Gounder devolved
upon Guranatha Gounder, it became his property and, therefore, it could
not be made the subject matter of the partition after the promulgation of
7
Hindu Succession Act, 1956. He also submitted that neither any issue was
framed nor any evidence was led by the plaintiff-appellant throughout the
entire proceedings to establish that property purchased in the Court
auction in the year 1938 was a self-acquired property of Marappa Gounder
and thus, it would be presumed that it was a joint family property leaving
no rights in his daughter to inherit the same.
13. We have considered the arguments advanced by the learned
counsel for the parties and with their assistance perused the record of the
case and the various texts and commentaries pertaining to Hindu Law.
14. Insofar as, the date of death of Marappa Gounder being 15.04.1949,
it is a finding of fact affirmed by the two fact-finding Courts based on
appreciation of material evidence existing on the record of the case and is
not liable to be interfered with and we proceed to decide the issue between
the parties taking the date of death of Marappa Gounder as 15.04.1949.
15. The other aspect of the matter is whether the suit property was
exclusively purchased by Marappa Gounder in the Court auction and was
his separate property or it was purchased out of the joint family fund
making it a joint family property. It is correct that neither any issue was
framed by Trial Court in this regard nor any evidence was led by the
8
parties nor any finding has been returned. However, in view of the
admission made by the defendant in para 3 of the written statement that
suit properties are absolute properties of Marappa Gounder, he having
purchased the same in a Court auction sale on 19.09.1938, there was
hardly any necessity to frame any issue in this regard, once the fact was
admitted in written statement.
16. It may be relevant to extract the relevant part of paragraph 3 of the
written statement which reads as under :-
“3. It is true that the suit properties are the absolute
properties of the Marappa Gounder, he having
purchased the suit properties in the Court auction sale
on 19.09.1938.”
17. Furthermore, the defendants themselves have nowhere pleaded that
purchase of suit property was made by Marappa Gounder out of the joint
family funds. There is a clear admission in the written statement that
property in question was the absolute property of Marappa Gounder, he
having purchased the same in the Court auction sale.
17.1 In view of above facts, the arguments advanced by learned counsel
for the respondent, in this regard, has no force and not liable to be
accepted.
9
18. In the backdrop of the above facts, the primary issue which arises
for our consideration is with respect to the right of the sole daughter to
inherit the self-acquired property of her father, in the absence of any other
legal heir having inheritable rights before the commencement of the Hindu
Succession Act, 1956 or in other words, whether such suit property will
devolve on to the daughter upon the death of her father intestate by
inheritance or shall devolve on to father’s brother’s son by survivorship.
19. The determination and adjudication of the issue depends upon the
answers to the following questions :-
1) What is the nature of the property and what would be the
course of succession if it is a separate property as
opposed to undivided property?
2) Whether a sole daughter could inherit her father’s separate
property dying intestate? And if so -
3) What would be the order of succession after the death of
such daughter?
20. To answer these questions, we are required to delve into the
concepts of old Hindu Law and its application. It is also imperative to look
into it’s origin and sources.
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Sources of Hindu Law
21. The exact origin of Hindu Law is shrouded in antiquity, however, the
Hindus believe their laws to exist in the revelations preserved in ‘Vedas’,
Shrutis (that which are heard and revealed) and Smritis in contradiction to
Shrutis (that which is remembered). The Smritis comprise forensic law or
the Dharma Shastra and are believed to be recorded in the very words of
Lord Brahma. The Dharma Shastra or forensic Law is to be found
primarily in the institutes or collections known as ‘Sanhitas’, Smritis or in
other words, the text books attributed to the learned scholarly sages, such
as, Manu, Yajnavalchya, Vishnu, Parasara and Guatama, etc. Their
writings are considered by the Hindus as authentic works. On these
commentaries, digests and annotations have been written. These ancient
sources have thus, charted the development of Hindu Law. These sources
constantly evolved over the years, embracing the whole system of law, and
are regarded as conclusive authorities. Besides these sources customs,
equity, justice, good conscience and judicial decisions have also
supplemented the development of Hindu Law.
22. The commentaries by various learned scholars have given rise to
different schools of Hindu Law- like Daya Bhaga in Bengal, Mayukha in
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Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in
Kerala and Mitakshara in other parts of India. The Mitakshara school of
law is one of the most important schools of law having a very vide
jurisdiction. It applies to majority of India with slight variations with the
fundamental principles being the same. These slight variations formed
various sub-schools, namely, Banaras School, Mithila School,
Maharashtra/Bombay School, Dravida/ Madras School.
23. The Mitakshara is supposed to be the leading authority in the school
of Benaras. Mr. Colebrooke, a famous sanskrit scholar of Bengal, writes
“the range of its authority and influence is far more extensive than that of
Jinota Vahanas Treatise for it is received in all other schools of Hindu Law,
from Benaras to the southern extremity of the Peninsula of India, as the
chief groundwork of the doctrines which they follow, and as an authority
from which they rarely dissent”1
. The Mitakshara has always been
considered as the main authority for all the schools of law, with the sole
exception of that of Bengal, which is mostly covered by another school
known as Daya Bhaga.
1 A Treatise on Hindoo Law by Standish Grove Grady published in1868 by Gantz Brother
Mount Road, Madras.
12
24. Reference may also be made to another observation at Page-165,
where it is stated as under :-
“Failing male issue, therefore, a widow takes the selfacquired property of her husband. No doubt, on failure
of male issue and a widow, the daughter would take.”
25. The commentary also refers to a case of Pranjivandas Tulsidas
Vs. Dev Kuvarbai, 1 Bomb. H.C., B. 131, wherein a Hindu owning
separate property died without a male issue, leaving behind – a widow,
four daughter and a brother and male issues of other deceased brothers.
The Court observed that the widow was entitled to a life estate in the
property and subject to her interest the property would devolve to the
daughters absolutely in preference to the brother and the issue of the
deceased brothers.
26. References to this case have also been made in numerous reported
as well as unreported cases; as in the case of Tuljaram Morarji vs.
Mathuradas, Bhagvandas, and Pranjivandas2
, it was observed that :-
 “…The decision in that case and that in Pranjivandas
vs. Devkuvarbai have been steadily followed by the
High Court in numerous unreported cases, and by the
2 ILR (1881) 5 Bom 662
13
legal profession…. Any departure now from those
decisions would cause much confusion and injustice
throughout this Presidency, and no advantage that we
can perceive. We, therefore, must abide by the
principles which they clearly indicate.”
27. In the case of Chotay Lall vs. Chunnoo Lall and Another3
the
Court noted:-
“The following are the direct authorities on the point.
Sir M. Sausse in 1859, in Pranjivandas Tulsidas v.
Devkuvarbai (2), held that a daughter takes absolutely
when inheriting from her father. In Bhaskar Trimbak
Acharya v. Mahadev Ramji
(3)
, decided in January
1869 by Sir Joseph Arnould, the head note states that
all property acquired by a married woman by
inheritance (except from her husband) classes
as stridhan, and descends accordingly. But this case
is founded exclusively on the case of Pranjivandas
Tulsidas v. Devkuvarbai.
28. However, despite our best efforts we could not get a copy of the
judgment in the case of Pranjivandas (Supra), therefore, we are relying
upon the aforesaid observations made in the said case by the Bombay
High Court as mentioned in the commentary by Standish Grove Grady and
the above-mentioned cases.
3 1874 SCC OnLine Cal 10
14
29. One of the sub-schools of Mitakshara- the Madras school of law
tends to cover most of the southern part of India. It exercises its authority
under Mitakshara law school. The Mitakshara school derives majorly from
the running commentaries of Smritis written by ‘Yajnavalkya’. Other
important sources governing the Mitakshara school are ‘Vyavastha
Chandrika’ and most importantly Smriti Chandrika.
30. The digest of ‘Yajnavalkya’ states that “What has been self-acquired
by any one, as an increment, without diminishing the paternal estate,
likewise a gift from a friend or a marriage gift, does not belong to the coheirs.”
31. It may also be relevant to refer to commentaries and annotations
from The principles and elements of Hindu Law in the form of a digest by
Shyama Charan Sarkar Vidya Bhushan, known as ‘Vyavastha
Chandrika’4
, a digest of Hindu Law. Section II of the said digest deals with
Daughters’ Right of Succession.
4 Vyavastha-Chandrika, A Digest of Hindu Law by Shyama Charan Sarkar, Vidya Bhushan
printed in 1878 by I.C.Bose & Co., STANHOPE PRESS 249, Bow-Bazar, Calcutta.
15
32. In Clause 118 of Section II of the commentary, it is stated as under :-
“In default of the widow, the daughters inherit the
estate of the man who died separated (from his
coparceners) and not re-united (with them).”
33. It also quotes ‘Vishnu’ and ‘Vrihaspati’ as under:-
“Vishnu : The wealth of a man who leaves no male
issue goes to his wife; on failure of her, to his
daughter.
Vrihaspati : The wife is pronounced successor to the
wealth of her husband; in her default, the daughter.
As a son, so does the daughter of a man proceed
from his several limbs. How then, should any other
person (b) take her father’s wealth?
(B) Any other person - These terms exclude the son
and widow, (who are preferable heirs), and include
the father and the rest. - Smriti Chandrika, ChapterXI, Section (ii), Clause 5 and 6.
“The meaning is how could the father and the rest
take the property of a son-less man, while the
daughter is alive.”
34. It also quotes ‘Manu’ as under :-
“Manu :- The son of a man is even as himself, and the
daughter is equal to the son. How then can any other
inherit his property, notwithstanding the survival of her,
who is, as it were, himself.”
16
35. Clause 120 of the ‘Vyavastha Chandrika’ reads as under :-
“120 :- A daughter being entitled to inherit the divided
property of her father, it has been, by parity of
reasoning, determined that, she is entitled to inherit
also such property as was separately acquired or held
by him, or was vested in him.”
36. The purport of the text of ‘Vrihaspati’ is that the brother or the father
and like would not take the property of a man who died without leaving a
male, when the daughter is alive. By springing from the same limbs of the
father, a daughter has been treated in Smriti Chandrika as equal to a son.
37. ‘NARADA’ aware of the equitableness of the proposition that it is the
daughter who should succeed on the failure of the son and the widow,
says, “on failure of male issue, the daughter inherits, for she is equally a
cause of perpetuating the race.”
38. Standish Grove Grady in his book ‘Treatise’ on Hindoo Law of
Inheritance published in 1868, in Chapter IX - ‘Inheritance of Succession’
while discussing the line of descent, has observed as under:-
“ Line of Descent - It will be seen in the course of this
chapter that the Hindoo Law of inheritance
17
comprehends the deceased’s family and his near
relations, viz, his issue, male and female; his widow,
who takes immediately in default of sons- a term which
includes grandsons and great-grandsons. On
exhaustion of this line of descent, the succession
ascends to his parents, brothers, nephews, and grand
nephews, this line continuing upwards to the
grandfather and great-grandfather, the grandmother
and great grandmother, the latter being given
precedence by those who have preferred the mother to
the father. The succession then runs downwards to
their respective issue, including daughter’s sons, but
not daughters, the whole being preferred to the half
blood; then follow the more remote kindred which we
shall presently enumerate.
In proportion as the claimant becomes remote, the
particulars vary with different schools and authors
presently pointed out.
In default of natural kind, the series of heirs in all the
classes, except that of Brahmins, closes with the
preceptor of the deceased, his pupil, his priest, hired to
perform sacrifices, or his fellow-student, each in his
order and falling all these, the lawful heirs of the
Kshtrya, Vashya and Soodra, who are learned and
virtuous Brahmins, resident in the same town or village
with the deceased.
If an estate should vest by succession in a Brahmin-as
he, being such, cannot perform obsequies for one of an
inferior caste – the duty may be discharged by
substitution of a qualified person, equal in class with
the deceased. In all cases where the heir is under
disabilities, he must take the same course, paying the
person employed for his services. The king too where
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the he takes by escheat, must cause obsequies to be
performed for the deceased.
The Hindoos give the agnate succession the
preference, the succession of females being deemed
exceptions.
Females cannot on account of their sex perform
obsequies. They do not, therefore, confer any benefit
and are generally disqualified from inheriting. From
this rule, there are only four exceptions for special
reasons, viz, the widow, the daughter, the mother
and the grandmother. According to the Benaras
and Mithila Schools, the females above-mentioned
inherit only when the family is divided. In an
undivided family, females are not admitted as heirs.
There are two modes of devolution of property :-
(I) From a sole separate owner
(ii) From a female.
Property of a united owner cannot be considered as
devolving upon the rest, they being joint proprietors by
birth. In the second class, the property will, in part, be
affected by the rights of collateral sharers.
But even in undivided families, a widow takes the
self-acquired property of her husband.
In the case of self-acquired property in the same
Chapter, Grady states :-
“It may safely be stated as a true proposition that
property, which is not ancesteral, is self-acquired, in
whatever way the property may have been obtained,
whether by gift or purchase or labour, mental or
physical, or otherwise.
19
Referring to judgment of Katama Natchiar Vs. The
Rajah of Shivagunga (which we shall deliberate in
the later part of the judgment), he observes when a
Zaminadari was escheated on the death of the last
zamindar, the government granted it a new to a distant
relation of his. This was treated as self-acquired
property. That case has decided that all self-acquired
property devolves in the same way as the family
property of a divided member. Failing male issue,
therefore, a widow takes the self-acquired property of
her husband. No doubt, on the failure of male issue
and a widow, the daughter would take”.
39. In the commentary titled as ‘Hindu Law and Judicature’ - from the
Dharma-sastra of Yajnavalkya5
 by renowned authors Edward Roer, PH.D.,
M.D. and W.A. Montriou, in Clause 135, it is stated as under :-
“135. If a man depart this life without male issue; (i) his
wife, (ii) his daughter, (iii) his parents, (iv) his brothers,
(v) the sons of his brothers, (vi) others of the same
gotra, (vii) kindred more remote, (viii) a pupil, (ix) a
fellow-student - these succeed to the inheritance, each
class upon failure of the one preceding. This rule
applies to all the caste.”
40. In another digest “Hindu Law as administered in the Courts of
Madras Presidency6
”, arranged and annotated by H.S. Cunningham, the
then Advocate General of Madras, it is stated in Clause 203 of Chapter
5 Hindu Law and Judicature from the Dharma-Sastra of ‘Yajnavalkya’ published in 1859.
6 A Digest of Hindu Law- As administered in the Courts of The Madras Presidency,
published in 1877 by HIGGINBOTHAM & Co.
20
VI, dealing with inheritance by daughters as under :-
“ Clause-203 :- In default of sons, grandsons, great
grandsons, and widows, the daughter succeeds to a life
estate in her father’s property.
41. Clause 206 of the said commentary provides that ‘a married
daughters and daughters who are widows succeed irrespectively of the
fact of their being barren or having no male issue’ and similarly, Clause
207 reads as under :-
“Clause-207 :- Daughters of each class hold their
estate jointly; the share of any daughter dying vests in
the surviving daughter or daughters of the same class,
and descends to the daughters of the next class only
when all the daughters of the prior class are
exhausted. In each class, a daughter who has not
been endowed on marriage, succeeds in preference to
the daughter who has been endowed.”
42. Clause 209 in the said commentary reads as under :-
“Clause 209 :- The daughter succeeds on the death of
her father’s widow, notwithstanding that such widow
be not her mother.”
43. ‘Mulla’ in his book Hindu Law (22nd Edition), while discussing the law
prior to the Hindu Succession Act, 1956 says that there are two systems of
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inheritance amongst the Hindus in India, namely, Mitakshara system and
Dayabhaga system. The Dayabhaga system prevails in Bengal, while the
Mitakshara system is applicable to other parts of India. The difference
between the two systems arises from the fact that, while the doctrine of
religious efficacy is the guiding principle under Dayabhaga School, there is
no such definite guiding principle under the Mitakshara School.
Sometimes consanguinity, and at the other times, religious efficacy has
been regarded as the guiding principle. According to ‘Mulla’, Mitakshara
recognises two modes of devolution of property, namely, survivorship and
succession. The rules of survivorship apply to joint family property, and
the rules of succession apply to property held in absolute severalty by the
last owner.
44. It may also be relevant to refer to §34 regarding devolution of
property according to Mitakshara Law7
 - In determining the mode in which
the property of a Hindu male, governed by Mitakshara Law, devolves on
his death, the following propositions are to be noted :-
(1) Where the deceased was, at the time of the death, a member of joint
and undivided family, technically called coparcenary, his undivided interest
7 Hindu Law by Mulla (22nd Edition)
22
in the coparcenary property devolves on his coparceners by survivorship.
(2) (i) Even if the deceased was joint at the time of his death, he might
have left self-acquired or separate property. Such property goes to
his heirs by succession according to the order given in § 43, and not
to his coparceners;
 (ii) If the deceased was at the time of his death, the sole surviving
member of a coparcenary property, the whole of his property,
including the coparcenary property, will pass to his heirs by
succession according to the order given in § 43;
(iii) If the deceased was separate at the time of his death from his
coparceners, the whole of his property, however acquired, will pass
to his heirs by succession according to the order given in § 43;
(3) If the deceased was re-united at the time of his death, his property
will pass to his heirs by succession according to the Rule laid down in §60.
45. According to ‘Mulla’ under Mitakshara Law, the right to inherit arises
from propinquity, i.e., proximity of relationship. Mitakshara divided blood
relations into three classes, namely -
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(a) Gotra-sapindas, i.e., Sapindas belonging to the same gotra or
family as the deceased from 1st-7th degree;
(b) Samanodaka, i.e., persons belonging to the same gotra or family as
the deceased from 8th -14th degree; and
(c) Bhinna gotra sapindas, i.e., Sapindas belonging to a different gotra
or family from the deceased.
46. ‘Gotra Sapindas’ and ‘Samanodaka’ are persons connected to the
deceased by an unbroken line of male descendants i.e., all agantes; and
Bhinna gotra sapindas are persons connected to the deceased through a
female i.e, cognates such as a sister’s son. ‘Bhinna gotra sapindas’ are
also known as ‘Bandhus’ in Mitakshara. These classifications while now
archaic and delineated as class-I, class-II, class-III and class-IV heirs
under the Hindu Succession Act, 1956, are of importance with respect to
the property in question considering its succession opened before the
commencement of the Hindu Succession Act, 1956.
47. The Gotra Sapindas of a person, according to Mitakshara are :-
(i) His six male descendants in the male line; i.e., his son,
son's son's son, etc.
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(ii) His six male ascendants in the male line, the wives of the
first three of them, and probably also of the next three; ie,
his father, father's father, father's father's father, etc,
being Fl to F6 in the table and their wives, that is Ml to
M6, being the mother, father's mother, father's father's
mother, etc.
(iii) The six male descendants in the collateral male line of
each of his male ascendants; i.e., to X6 in the line of F1,
being his brother, brother's son, brother's son's son, etc;
to X6 in the line of F2, being his paternal uncle, paternal
uncle's son, etc; to X6 in the line of F3, being his paternal
grand-uncle, paternal granduncle's son, etc.; to X6 in the
line of F4; to X6 in the line of F5', and to x6 in the line of
F6.
(iv) His wife, daughter, and daughter's son.
48. The Sapinda relationship extends to seven degrees reckoned from
and inclusive of the deceased and six degrees, if you exclude the
deceased. The wife becomes a sapinda of the husband on marriage. The
25
daughter's son is not a gotraja sapinda, he is a bandhu because he is
related to the deceased through a female. However, for the purpose of
succession, he is ranked with gotraja sapindas.
49. The Hindu Law of Inheritance (Amendment) Act, 1929 was the
earliest Statutory legislation which brought the Hindu females into the
scheme of inheritance. The 1929 Act introduced certain female statutory
heirs which were already recognized by the Madras School, i.e., the son’s
daughter, daughter’s daughter, sister and sister’s son in the order so
specified, without making any modifications in the fundamental concepts
underlying the textual Hindu Law relating to inheritance; only difference
being that while before the Act, they succeeded as bandhus, under the Act,
they inherited as ‘gotra sapindas’.
50. The Mitakshara law also recognises inheritance by succession but
only to the property separately owned by an individual, male or female.
Females are included as heirs to this kind of property by Mitakshara law.
Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal,
Benares and Mithila sub-schools of Mitakshara recognised only five female
relations as being entitled to inherit namely - widow, daughter, mother
paternal grandmother and paternal great-grand mother. The Madras subschool recognized the heritable capacity of a larger number of females
26
heirs that is of the son's daughter, daughter's daughter and the sister, as
heirs who are expressly named as heirs in Hindu Law of Inheritance
(Amendment) Act, 1929. The son's daughter and the daughter's daughter
ranked as bandhus in Bombay and Madras. The Bombay school which is
most liberal to women, recognized a number of other female heirs,
including a half -sister, father's sister and women married into the family
such as stepmother, son's widow, brother's widow and also many other
females classified as bandhus. From the above discussions, it is
abundantly clear that a daughter was in fact capable of inheriting the
father’s separate estate.
Judicial Precedents
51. Privy Council has delivered some notable judgments on the issue
arising for adjudication in the case at hands. Reference may be made to
the case of Katama Natchiar Vs. Srimut Rajah Mootoo Vijaya
Raganadha Bodha Gooroo Sawmy Periya Odaya Taver
8
. The dispute
in the appeal before the Privy Council was in respect of the Right of
Inheritance of Shivagunga Zamindary, situate in the District Maduaa,
Presidency of Madras. The Privy Council after noticing the facts of the
8 (1863) 9 MIA 539
27
long litigation and the three suits filed between the parties, which were
dismissed by the Provincial Court and the appeal was filed in each of the
three suits which were heard together and disposed of by the decree of
the Sudder Court. The Privy Council noted the following arguments
advanced before it, by Anga Moottoo Natchiar, as under :-
“She submitted as in issue of fact that the Zamindar had
been acquired by the sole exertions and merits of her
husband; and as an issue of law that what is acquired by
a man, without employment of his patrimony, shall not be
inherited by her brothers and co-heirs, but if he dies
without male issue, shall descend to his widows, his
daughters and the parents, before going to her brothers
or remoter collaterals.
52. After analysing the factual aspects in details, the Privy Council
posed three questions as under :-
“The substantial contest between the appellant and the
respondent is, as it was between Anga Mootoo Natchiar and the
respondent’s predecessors, whether the Zamindary ought to
have descended in the male and collateral line; and the
determination of this issue depends on the answers to be given
to one or more of the following questions :
(i) Were Gowery Vallabha Taver and his brother, Oya Taver,
28
undivided in estate, or had a partition taken place between
them?
(ii) If they were undivided, was the zemindary the selfacquired and separate property or Gowery Vallabha Taver? and
if so-
(iii) What is the course of succession according to the Hindoo
Law of the South of India of such an acquisition, where the
family is in other respects an undivided family?
53. Insofar as, the first question is concerned, the Privy Council did not
disturb the findings in the decree of 1847 that Gowery Vallabha Taver and
his brother, after the acquisition by the former of the zemindary, lived very
much as if they were separate. The second question was answered in
affirmative. With respect to the third question, the Privy Council observed
as under :-
“The third question is one of nicety and of some
difficulty. The conclusion which the Courts in India have
arrived at upon it, is founded upon the opinion of the
Pundits, and upon authorities referred to by them. We
shall presently examine those opinions and authorities;
but before doing so, it will be well to consider more fully
the law of inheritance as it prevails at Madras and
throughout the southern parts of India, and the
29
principles on in these parts of India is to be found in the
Mitacshara, and in ch.II., sec. 1, of that work the right of
windows to inherit in default of male issue is fully
considered and discussed.
The Mitacshara purports to be a commentary upon the
earlier institutes of Yajnyawalcya; and the section in
question begins by citing a text from that work, which.
Affirms in general terms the right of the window to
inherit on the failure of male issue. But then the author
of the Mitacshara refers to various authorities which are
apparently in conflict with the doctrines of
Yajnyawalcya, and, after reviewing those authoritesi,
seeks to re3concile them by coming to the conclusion
“that a wedded wife, being chaste, takes the whole
estate of a man, who, being separated from his coheirs, and not subsequently re-united with them, dies
leaving no male issue,” This text, it is true, taken by
itself, does not carry the rights of widows to inherit
beyond the cases in which their husbands have died in
a state of separation from their co-heirs, and leaving no
male issue; but it is to be observed that the text is
propounded as a qualification of the larger and more
general proposition in favour of widows; and,
consequently, that in construing it, we have to consider
what are the limits of the qualification, rather than what
are the limits of the right. Now, the very terms of the
text refer to eases in which the whole estate of the
deceased has been his separate property, and, indeed,
the whole chapter in which the text is contained, seems
to deal only with cases in which the property in
question has been either wholly the common property
of a united family, or wholly the separate property of the
deceased husband We find no trace in it of a case like
that before us, in which the property in question may
have been in part the common property of a unit4ed
family, and in part the separate acquisition of the
deceased; and it cannot, we think, be assumed that
because widows take the whole estates of their
husbands when they have been separated from, and
30
not subsequently re-united with, their co-heirs, and
have died leaving n™ male issue, they cannot, when
their husbands have not been so separated, take any
part of their estates, although it may have been their
husband’s separate acquisition. The text, therefore,
does not seem to us to govern this case.
There being then no positive text governing the case
before us, we must look to the principles of the law to
guide us in determining it. It is to be observed, in the
first place, that the general course of descent of
separate property according to the Hindoo law is no
disputed. It is admitted that, according to that law, such
property descends to windows in default of male issue.
It is upon the Respondent, therefore, to make out that
the property here in question, which was separately
acquired, does not descend according to the general
course of the law. The way in which this is attempted to
be done, is by showing a general state of coparcenaryship as to the family property; but assuming
this to have been proved, or to be presumable from
there being no disproof of the normal state of coparcenaryship, this proof, or absence of proof, cannot
alter the case, unless it be also the law that there
cannot be property belonging to a member of a united
Hindoo family, which descends in a course different
from that of the descent of a. share of the property held
in union; but such a proposition is new, unsupported by
authority, and at variance with principle. Thai two
courses of descent may obtain on a part division of join
property, is apparent from a passage in W.H.
Macnaghten’s “Hindu Law,” title “Partition,” vol. I. p. 53,
where it is said as follows: “According to the more
correct opinion, where there is an undivided residue, it
is not subject to the ordinary rules of partition of join
property; in other words, if at a general partition any
part of the pro-perty was left joint, the widow of a
deceased brother will not participate, notwithstanding
the separation, but such undivided residue will go
exclusively to the brother.”
31
Again, it is not pretended that on the death of the
acquirer. of separate property, the separately acquired
property falls into the common stock, and passes like
ancestral property. On the contrary, it is admitted that if
the acquirer leaves male issue, it will descend as
separate property to that issue down to the third
generation. Although, therefore, where there is male
issue, the family property and the separate property
would not descend to different persons, they would
descend in a different way, and. with different consequences; the sons taking their father’s share in the
ancestral property subject to all the rights of the coparceners in that property, and his self-acquired
property free from those rights. The course of
succession would not be the same for the family and
the separate estate; and it is clear, therefore, that,
according to the Hindoo law, there need not be unity of
laeirship.
But to look more closely into the Hindoo law. When
property belonging in common to a united Hindoo
family has been divided, the divided shares go in the
general course of descent of separate property. Why, it
may well be asked, should not the same rule apply to
property which from its first acquisition has always
been separate We have seen from the passage already
quoted from Macnaghten’s “Hindu Law,” that where a
residue is left un-divided upon partition, what is divided
goes as separate property; what is undivided follows
the family property; that which remains as it was,
devolves in the old line; that which is changed and
becomes separate, devolves in the new line. In other
words, the law of succession follows the nature of the
property and of the interest in it.
Again, there are principles on which the rule of
succession according to the Hindoo law appears to
depend: the first is that which determines the right to
offer the funeral oblation, and the degree in which the
32
person making the offering is supposed to minister to
the spiritual benefit of the deceased; the other is an
assumed right of survivorship. Most of the authorities
rest the uncontested right of widows to inherit the
estates of their husbands, dying separated from their
kindred, on the first of these principles (1 Strange’s
“Hindu Law,” p. 135). But some ancient authorities also
invoke the other principle.
Again, the theory which would restrict the preference
of the co-parceners over the windows to partible
property is not only, as is shown above, founded upon
an intelligible principle, but reconciles the law of
inheritance with the law of partition. These laws, as is
observed by Sir Thomas Strange, are so intimately
connected that they may almost be said to be blended
together; and it is surely not consistent with this
position that co-parceners should take separate
property by descent, when they take no interest in it
upon partition. We may further observe, that the view
which we have thus indicated, of the Hindoo law is not
only, as we have shown, most consistent with its
principles, but is also most consistent with
convenience.”
54. On a complete reading of the judgment of Privy Council in extenso,
the following legal principles are culled out:-
A) That the General Course of descends of separate
property according to the Hindu Law is not disputed
it is admitted that according to that law such
property (separate property) descends to widow in
default of male issue.
33
B) It is upon Respondent therefore to make out that
the property herein question which was separately
acquired does not descends according to the
general Course of Law.
C) According to the more correct opinion where there
is undivided residue, it is not subject to ordinary
rules of partition of joint property, in other words if it
a general partition any part of the property was left
joint the widow of the deceased brother will not
participate notwithstanding with separation but
such undivided residue will go exclusively to
brother.
D) The law of succession follows the nature of
property and of the interest in it.
E) The law of partition shows that as to the separately
acquired property of one member of a united family,
the other members of the family have neither
community of interest nor unity of possession.
F) The foundation therefore of a right to take such
property by survivorship fails and there are no
grounds for postponing the widow’s right any
superior right of the co-parcenars in the undivided
property.
34
G) The Hindu Law is not only consistence with this
principle but is also most consistent with
convenience.”
55. Another case of the Privy Council is Sivagnana Tevar and Anr. Vs.
Periasami & Ors.9
. The aforesaid case, before the Privy Council was in
continuity and of the consequence of the previous case Katama Natchiar
(Supra) but of a different branch of the family. In the said case, it was
observed as under :-
“Their Lordships then have come to the conclusion that,
as between the descendants of Muttu Vaduga and
Dhorai Pandian, the palayapat was the separate
property of the latter; that on the death of Dhorai
Pandian, his right, if he had any left undisposed of in
the property, passed to his widow, notwithstanding the
undivided status of the family; and that therefore, the
case was one to which the rule of succession affirmed
in the Shivagunga case (Supra) applies.”
56. The principles of law which can be deduced from reading of the
aforesaid judgment can be summarized as under:-
“The law laid down in the case of Katama Natchiar Vs.
Srimut Rajah Mootoo Vijaya Raganadha Bodha
Gooroo Sawmy Periya Odaya Taver, that succession
in the case of Hindu male dying intestate is to be
governed by inheritance rather than survivorship, is
9 1878 (1) ILR Madras 312
35
reaffirmed.
In the absence of male member, the property devolves
upon widow and thereafter to daughter.”
57. A Full Bench of Allahabad High Court, in the case of Ghurpatari &
Ors. Vs. Smt. Sampati & Ors.10
, while considering the question whether a
custom under which daughters are excluded from inheriting the property of
their father can by implication exclude the daughters' issues both males
and females, also from such inheritance, made the following observations
in respect of Right of Inheritance of a widow or a daughter of a male Hindu
dying intestate :-
“17. The rules relating to inheritance by widow and
daughter were enunciated in the ancient past by
various sages and were ultimately elaborated by
Vijnyaneshwara in Mitakshara. We may quote from
Colebrooke's translation.”
Katyayan said “let the widow succeed to her husband’s
wealth, provided she be chaste; and in default of her let
the daughter inherit if married.” Brihaspati Said, “the
wife is pronounced successor to the wealth of her
husband; and in her default the daughter; as a son so
does the daughter of a man proceed from his several
limbs, how then shall any other person take the father’s
wealth”? Vishnu laid down, “if a man leaves neither
son, nor son’s son, nor wife, nor female issue, the
daughter’s son shall take his wealth, for in regard to the
obsequies of ancestors, daughter’s son is considered
as son’s son.” Manu likewise declared that “by a male
child, who were daughter whether formally appointed or
not, shall produce from a husband of an equal class,
10 AIR 1976 ALL 195
36
the maternal grandfather becomes the grand sire of
son’s son, let that son give the funeral oblation and
possess the inheritance”. The right of daughter and
daughter’s son to succeed to the property was thus
well recognized in the Mitakshara Law. The daughter
ranks fifth in the order of succession and the daughter’s
son ranked sixth.”
58. Thereafter, the Court proceeded to consider the question of custom
prevalent in a particular sect and whether they will have the sources of law
with which we are not concerned in the case at hands.
59. The Hindu Law of Inheritance (Amendment) Act II of 1929
(hereinafter called as ‘the Act of 1929), for the first time entitled the
daughter’s daughter, subject to a special family or local custom, to succeed
to the property of a male Hindu governed by Mitakshara Law. Daughter’s
daughter then ranked 13th-B in the order of succession. The order of
succession to the estate of a Hindu dying interstate and governed by
Mitakshara Law are set out in Paragraph 43 of Mulla’s Principles of Hindu
Law11 as under :-
“The Sapindas succeeded in the following order :-
1-4 A son, grandson (son’s son) and great grandson
(son’s son’s son) and (after 14th April, 1937) widow,
predeceased son’s widow, and predeceased son’s
son’s widow.
11 Mulla’s Principles of Hindu Law (14th Edition)
37
5. Daughter.
6. Daughter’s son
13. Father’s father
13.A Son’s daughter's
13.B Daughter’s daughter
60. In the case of Lal Singh & Ors. Vs. Roor Singh & Ors.12
, it was
held that daughters and daughters son have a preferential claim to the
non-ancestral property as against the collaterals.
61. In the case of Gopal Singh & Ors. vs. Ujagar Singh & Ors.13
, it
was observed by this Court that the daughter succeeds to the selfacquired property of her father in preference to collaterals. This Court
proceeded to rely upon the following observation in Rattigan’s Digest to
‘Customary Law’ :-
“In regard to the acquired property of her father, the
daughter is preferred to the collaterals.”
62. Reference may also be made to the decision of Bombay High Court
in Devidas & Ors. Vs. Vithabai & Anr.14. In the said case, one Arujna
died in 1936, when succession opened and while determining the shares
during partition daughter of one pre-deceased sons of Arjuna namely,
Vithabai was held entitled for a share. The name of Vithabai was removed
12 55 Punjab Law Reporter 168 at 172
13 AIR 1954 SC 579
14 2008 (5) Mh.L.J. 296
38
from revenue record. She filed a suit for declaration claiming 1/3rd share
with other reliefs. Trial Court dismissed the suit. The First Appellate Court
held that plaintiff, Vithabai, being daughter of Zolu was a Class-I heir and
thus, was entitled to 1/3rd share and accordingly, reversed the decree.
The matter was carried in second appeal. The High Court while reversing
the decree of Lower Appellate Court and confirming that of the Trial Court
observed as under :-
“12. Zolu, when died in 1935 was joint with his father
and brothers. Therefore, his share in the coparcenery
would devolve by survivorship and not by succession.
Zolu did not hold any separate property admittedly and
therefore, there was no question of property passing
over by succession. The following illustration to
Section 24 in Mulla's Hindu Law 19th Edition shall be
enough to unfortunately negative the claim of the
plaintiff. The case is squarely covered by this
illustration.
(1) A and B two Hindu brothers, governed by the
Mitakshara School of Hindu Law, are members of a
joint and undivided family. A dies leaving his brother B
and a daughter. A's share in the joint family property
will pass to his brother, the surviving coparcener, and
not to his daughter. However, if A and B were separate,
A's property would on his death pass to his daughter
as his heir.
The plaintiff due to the above proposition of law was
not entitled to succeed to the estate of her father. The
persons on whom the share of Zolu devolved were his
brothers and father by survivorship. The share could
not devolve on the daughter by succession since the
39
plaintiff herself pleads that the property was joint and
there was no partition. It was, therefore, not a separate
estate of Zolu so that rule of succession could be
applied. The property therefore passed over by
survivorship in favour of brothers and father who were
coparceners.”
63. The 174th Law Commission in its report on ‘Property Rights of
Women’ while proposing reforms under the Hindu Law has observed as
under :-
“1.3.3 The Mitakshara law also recognising inheritance
by succession but only to the property separately
owned by an individual, male or female. Females are
included as heirs to this kind of property by
Mitakshara law. Before the Hindu Law of Inheritance
(Amendment) Act 1929, the Bengal, Benares and
Mithila sub-schools of Mitakshara recognised only
five female relations as being entitled to inherit
namely;- widow, daughter, mother, paternal
grandmother, and paternal great-grand mother.
1. The Madras sub-schools recognised the heritable
capacity of a larger number of females heirs that is of
the son's daughter, daughter's daughter and the sister
as heirs were expressly named as heirs in Hindu Law
of Inheritance (Amendment) Act,1929.
2. The son's daughter and the daughter's daughter
ranked as Bandhus in Bombay and Madras. The
Bombay School which is most liberal to women,
recognised a number of other female heirs,
including a half sister, father's sister and women
married into the family such as step-mother, son's
widow, brother's widow and also many other females
classified as Bandhus.”
40
64. From the above discussions, it is clear that ancient text as also the
Smritis, the Commentaries written by various renowned learned persons
and even judicial pronouncements have recognized the rights of several
female heirs, the wives and the daughter’s being the foremost of them.
65. The rights of women in the family to maintenance were in every case
very substantial rights and on whole, it would seem that some of the
commentators erred in drawing adverse inferences from the vague
references to women’s succession in the earlier Smritis. The views of the
Mitakshara on the matter are unmistakable. Vijneshwara also nowhere
endorses the view that women are incompetent to inherit.
Our Analysis
66. Right of a widow or daughter to inherit the self-acquired property or
share received in partition of a coparcenary property of a Hindu male
dying intestate is well recognized not only under the old customary Hindu
Law but also by various judicial pronouncements and thus, our answer to
the question Nos. 1 and 2 are as under :-
“If a property of a male Hindu dying intestate is a selfacquired property or obtained in partition of a co-parcenery
41
or a family property, the same would devolve by inheritance
and not by survivorship, and a daughter of such a male
Hindu would be entitled to inherit such property in
preference to other collaterals.”
67. In the case at hands, since the property in question was admittedly
the self-acquired property of Marappa Gounder despite the family being in
state of jointness upon his death intestate, his sole surviving daughter
Kupayee Ammal, will inherit the same by inheritance and the property shall
not devolve by survivorship.
68. Insofar as, question no. 3 is concerned under the old customary
Hindu Law, there are contradictory opinions in respect of the order of
succession to be followed after the death of such a daughter inheriting the
property from his father. One school is of the view that such a daughter
inherits a limited estate like a widow, and after her death would revert back
to the heirs of the deceased male who would be entitled to inherit by
survivorship. While other school of thought holds the opposite view. This
conflict of opinion may not be relevant in the present case inasmuch as
since Kupayee Ammal, daughter of Marappa Gounder, after inheriting the
suit property upon the death of Marappa Gounder, died after enforcement
42
of Hindu Succession Act, 1956 (hereinafter referred to as ‘The Act of
1956’), which has amended and codified the Hindu Law relating to
intestate succession among Hindus. The main scheme of this Act is to
establish complete equality between male and female with regard to
property rights and the rights of the female were declared absolute,
completely abolishing all notions of a limited estate. The Act brought about
changes in the law of succession among Hindus and gave rights which
were till then unknown in relation to women’s property. The Act lays down
a uniform and comprehensive system of inheritance and applies, inter-alia,
to persons governed by the Mitakshara and Dayabhaga Schools and also
to those governed previously by the Murumakkattayam, Aliyasantana and
Nambudri Laws. The Act applies to every person, who is a Hindu by
religion in any of its forms including a Virashaiva, a Lingayat or a follower
of the Brahmo Pararthana or Arya Samaj and even to any person who is
Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian,
Parsi or Jew or Sikh by religion. Section 14 of the Act of 1956 declares
property of a female Hindu to be her absolute property, which reads as
under:-
“14. Property of a female Hindu to be her absolute
property.-
43
(1) Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall be
held by her as full owner thereof and not as a limited owner.
Explanation.—In this sub-section, “property” includes both
movable and immovable property 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 stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under
an award where the terms of the gift, will or other instrument or
the decree, order or award prescribe a restricted estate in such
property.”
69. The legislative intent of enacting Section 14(I) of the Act was to
remedy the limitation of a Hindu woman who could not claim absolute
interest in the properties inherited by her but only had a life interest in the
estate so inherited.
70. Section 14 (I) converted all limited estates owned by women into
absolute estates and the succession of these properties in the absence of
a will or testament would take place in consonance with Section 15 of the
Hindu Succession Act, 1956, which reads as follows:-
44
“Section -15. General rules of succession in the case
of female Hindus.—
(1) The property of a female Hindu dying intestate shall
devolve according to the rules set out in section 16,—
(a) firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section
(1)-
(a) any property inherited by a female Hindu from her
father or mother 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 father; and
(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.”
Section 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.—Among the heirs specified in sub-section (1) of
Section 15, those in one entry shall be preferred to those
45
in any succeeding entry and those included in the same
entry shall take simultaneously.
Rule 2.—If any son or daughter of the intestate had predeceased the intestate leaving his or her own children
alive at the time of the intestate’s death, the children of
such son or daughter shall take between them the share
which such son or daughter would have taken if living at
the intestate’s death.
Rule 3.—The devolution of the property of the intestate on
the heirs referred to in clauses (b), (d) and (e) of subsection (1) and in sub-section (2) to 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.”
71. The scheme of sub-Section (1) of Section 15 goes to show that
property of Hindu females dying intestate is to devolve on her own heirs,
the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). SubSection (2) of Section 15 carves out exceptions only with regard to
property acquired through inheritance and further, the exception is
confined to the property inherited by a Hindu female either from her father
or mother, or from her husband, or from her father-in-law. The exceptions
carved out by sub-Section (2) shall operate only in the event of the Hindu
female dies without leaving any direct heirs, i.e., her son or daughter or
46
children of the pre-deceased son or daughter.
72. Thus, if a female Hindu dies intestate without leaving any issue, then
the property inherited by her from her father or mother would go to the
heirs of her father whereas the property inherited from her husband or
father-in-law would go to the heirs of the husband. In case, a female
Hindu dies leaving behind her husband or any issue, then Section 15(1)(a)
comes into operation and the properties left behind including the
properties which she inherited from her parents would devolve
simultaneously upon her husband and her issues as provided in Section
15(1)(a) of the Act.
73. The basic aim of the legislature in enacting Section 15(2) is to
ensure that inherited property of a female Hindu dying issueless and
intestate, goes back to the source.
74. Section 15(1)(d) provides that failing all heirs of the female specified
in Entries (a)-(c), but not until then, all her property howsoever acquired
will devolve upon the heirs of the father. The devolution upon the heirs of
the father shall be in the same order and according to the same rules as
would have applied if the property had belonged to the father and he had
47
died intestate in respect thereof immediately after her death. In the
present case the since the succession of the suit properties opened in
1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby
Ramasamy Gounder’s daughters being Class-I heirs of their father too
shall be heirs and entitled to 1/5th share each in the suit properties.
75. This Court while analysing the provisions of Sections 15 & 16 of the
Act in the case of State of Punjab Vs. Balwant Singh & Ors.15, has held
as under:-
“7. Sub-section (1) of Section 15 groups the heirs of a
female intestate into five categories and they are
specified under clauses (a) to (e). As per Sections 16
Rule 1 those in one clause shall be preferred to those
in the succeeding clauses and those included in the
same clause shall take simultaneously. Sub- section
(2) of Section 15 begins with a non-obstante clause
providing that the order of succession is not that
prescribed under sub-section (1) of Section 15. It
carves out two exceptions to the general order of
succes- sion provided under sub-section (1). The first
exception relates to the property inherited by a female
Hindu from her father or mother. That property shall
devolve, in the absence of any son or daughter of the
deceased (including the children of the 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 father. The second exception is in
relation to the property inherited by a female Hindu
15 1992 Supp. (3) SCC 108
48
from her husband or from her father-in-law. That
property shall devolve, in the absence of any son or
daughter of the deceased (including the children of the
pre-deceased son or daughter) not upon the other
heirs referred to under sub-section (1) in the order
specified thereunder but upon the heirs of the
husband.
8. The process of identifying the heirs of the intestate
under sub-section (2) of Section 15 has been explained
in Bhajya v. Gopikabai and Anr. [1978] 3 SCR 561.
There this Court observed that the rule under which
the property of the intestate would devolve is regulated
by Rule 3 of Section 16 of the Act. Rule 3 of Section 16
provides that "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 sub-section (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".
76. Again in the case of Bhagat Ram (dead) by LRs. Vs. Teja Singh
(dead) by LRs.16
, a two-Judge Bench of this Court analysing the
provisions of Sections 14, 15 and 16 of the Act reiterating the view taken
in the State of Punjab Vs. Balwant Singh & Ors.(Supra), observed as
under :-
16 (2002) 1 SCC 210
49
“The source from which she inherits the property is
always important and that would govern the situation.
Otherwise persons who are not even remotely related
to the person who originally held the property would
acquire rights to inherit that property. That would
defeat the intent and purpose of sub-Section 2 of
Section 15, which gives a special pattern of
succession. “
77. Applying the above settled legal proposition to the facts of the case
at hands, since the succession of the suit properties opened in 1967 upon
death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy
Gounder’s daughter’s being Class-I heirs of their father too shall also be
heirs and entitled to 1/5th Share in each of the suit properties.
78. Unfortunately, neither the Trial Court nor the High Court adverted
itself to the settled legal propositions which are squarely applicable in the
facts and circumstances of the case.
79. Thus, the impugned judgment and decree dated 01.03.1994 passed
by the Trial Court and confirmed by the High Court vide judgment and
order dated 21.01.2009 are not liable to be sustained and are hereby set
aside.
50
80. The appeal, accordingly, stands allowed and the suit stands decreed.
81. Let a preliminary decree be drawn accordingly. It shall be open to the
parties to invoke the jurisdiction of appropriate Court for preparation of final
decree in accordance with law.
82. However, in the facts and circumstances of the case, we do not make
any order as to costs.
.................................J.
(S. ABDUL NAZEER)
...............................J.
(KRISHNA MURARI)
NEW DELHI;
20TH JANUARY, 2022
51

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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