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

3

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

5

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 23

rd

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

6

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.

10

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

11

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.

1A 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 self-

acquired 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 Pranjivandas

2

, 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 Another

3

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 co-

heirs.”

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, Chapter-

XI, 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 Yajnavalkya

5

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 Presidency

6

”, arranged and annotated by H.S. Cunningham, the

then Advocate General of Madras, it is stated in Clause 203 of Chapter

5Hindu Law and Judicature from the Dharma-Sastra of ‘Yajnavalkya’ published in 1859.

6A 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 :-

“Claus e-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 (22

nd

Edition), while discussing the law

prior to the Hindu Succession Act, 1956 says that there are two systems of

21

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 Law

7

- 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 (22

nd

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 -

23

(a)Gotra-sapindas, i.e., Sapindas belonging to the same gotra or

family as the deceased from 1

st

-7

th

degree;

(b)Samanodaka, i.e., persons belonging to the same gotra or family as

the deceased from 8

th

-14

th

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.

24

(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 sub-

school 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 Tave r

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 self-

acquired 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 co-

heirs, 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 co-

parcenaryship 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 co-

parcenaryship, 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 con-

sequences; the sons taking their father’s share in the

ancestral property subject to all the rights of the co-

parceners 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

91878 (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,

10AIR 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 13

th

-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

Law

11

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 14

th

April, 1937) widow,

predeceased son’s widow, and predeceased son’s

son’s widow.

11 Mulla’s Principles of Hindu Law (14

th

Edition)

37

5. Daughter.

6. Daughter’s son

13. Father’s father

13.ASon’s daughter's

13.BDaughter’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 self-

acquired 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 174

th

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 self-

acquired 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 pre-

deceased 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 sub-

section (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). Sub-

Section (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 1/5

th

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;

20

TH

JANUARY, 2022

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