Annagouda Nathgouda Patil Vs. Court of
Wards & ANR [1951] INSC 58 (17 December 1951)
MUKHERJEA, B.K.
SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION: 1952 AIR 60 1952 SCR 208
CITATOR INFO :
C 1970 SC 789 (13) RF 1970 SC1643 (13)
ACT:
Hindu Law--Inheritance--Succession to
property of female-Hindu Law of Inheritance (Amendment) Act (II of
1929)--Applicability-Rights of sister's sons--Property of maiden--Order of
succession.
HEADNOTE:
The Hindu Law of Inheritance (Amendment) Act
(Act II of 1929) which introduced the son's daughter, daughter's daughter,
sister and sister's son between the grandfather and the paternal uncle in the
order of succession applies only to the separate property of a Hindu male who
dies intestate.
It does not alter the law as regards the
devolution of any other kind of property owned by a Hindu male and does not
purport to regulate succession to the property of a Hindu female at all. The
Act cannot therefore be invoked to determine the heirs of a Hindu female in
respect of her stridhan property.
The property of a Hindu female who dies as a
maiden goes in the first place to her uterine brothers, then to the mother and
then to the father, and on failure of the mother and father, it goes to the
nearest relations, that is to say, to the sapindas of the father and in their
default the sapindas of the mother, both in the order of propinquity.
Under the Mitakshara law of succession as
well as the Mayukha law the paternal uncle's son is entitled to succeed to the
property of a Hindu in preference to sister's sons.
Manda Mahalakshmamma v. Mantravadi (I.L.R.
1947 Mad.
23), Shakuntala Bai v. Court of Wards (I.L.R.
1942 Nag.
629), Taluhraj Kuar v. Bacha Kuar (I.L.R. 28
Pat. 150), Kuppuswami v. Manickasari (A.I.R. 1950 Mad. 196) approved.
Shamrao v. Raghunandan (I.L.R. 1939 Bom.
228), Mst. Charjo v. Dinanath (A.I.R. 1937 Lah. 196), Kehar Singh v. Attar
Singh (A.I.R. 1944 Lah. 1142), Indra Pal v. Humangi Debi (I.L.R. 1949 All. 816)
not approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 115 of 1950.
Appeal from the Judgment and Decree of the
Bombay High Court (Macklin and Rajadhyaksha JJ.) dated 14th March. 1945, in
First Appeal No. 274 of 1941 which arose out of a decree dated 15th March, 209
1941, of the First Class Subordinate Judge of Satara in Civil Suit No. 890 of
1938.
G.R. Madbhavi (K. R. Bergeri, with him) for
their appellant.
H.J. Umrigar for respondent No. 1.
M.C. Setalvad, Attorney-General for India (K.
G.Datar, with him) for respondent No. 2.
1951. December 17. The Judgment of the Court
was delivered by MUKHERJEA J.--This appeal is directed against a judgment and
decree of a Division Bench of the Bombay High Court dated the 14th of March,
1945, which affirmed, on appeal, the decision of the First Class Subordinate
Judge, Satara, passed in Civil Suit No 890 of 1938. The appellants before us
filed the suit as plaintiffs in the original court, for establishment of their
title to the property in dispute which is known as Chikurde Estate, on the
allegation that they were, under the Hindu Law, the nearest heirs of one
Bhimabai, who was admittedly the last holder of the estate.
The suit was brought initially against one
defendant, namely, the Court of Wards, Satara, and admittedly the Court of
Wards took possession of the property of Bhimabai, while she was alive, and is
continuing in possession of the same even now after her death. Later on,
defendants 2, 3 and 4, who put forward rival claims of succession to the
estate, were allowed to intervene in the suit and were added as parties defendants.
The Court of Wards, which now figures as defendant No. 1, took up, all through,
a neutral attitude and expressed its willingness to hand over the estate to any
person who would be declared to be rightfully entitled to it by the Court. The
Courts below have negatived the claims of defendants 2 and 3 and they have not
come up to press.
their claims in the appeal before us. The two
rival claimants, who are now on the scene, are the plaintiffs on one side and
defendant No. 4 on the other, and the whole controversy in this appeal centres
round the 210 point as to who amongst them have the preferential right to
succeed to the disputed estate after the death of Bhimabai.
To appreciate the material facts of the case
and the contentions that have been raised by the parties, it will be convenient
to refer to the following genealogy which is not disputed by either side.
Vithalrao (died 1896) --------Ganpatrao (died
1914) Nilkanthrao Anandrao Tangawa alias (died 1899) (died 1913) Anandibai
(Deft. 2) Krishnabai Adopted Deft. 3 Vithalrao (Deft. 4) Babasaheb on adopted
by 3-2-1939. Krishnabai on 4-11-1924 Respdt. 2.
Firangojirao (died Tanakka (predeceasangabai
(died 15-11-1919.) ed her sister Gangabai on 14-2-1924) without any issue).
Nathgauda Annagauda Balgauda (Plff. 2) Bhimabai (daughter) (Plff. No. 1)
Appellant No. 2.
(died on 27-1-1932). Appellant No. 1 It is
the case of both the parties that Vithalrao, whose name appears at the top of
the pedigree table, and who was the common ancestor of the parties, held the
disputed property as watan property appertaining to the hereditary office of
Deshmukhi service. Vithalrao was the recipient of a Sanad dated 28th November,
1892, under what was called the Gordon Settlement, the object of which was to
commute services of certain watandars in that part of the country and relieve
them from liability to perform the services attached to their office on certain
terms and conditions which were agreed upon between the Government on the one
hand and the watandars on the other. The terms of the settlement were generally
embodied in Sanads and one such Sanad was granted to Vithalrao in 1892. It is
not disputed that after this settlement Vithalrao continued to be watandar as
defined by Bombay Act III of 1874, and that the watan in dispute was an
impartible estate governed by the rule of 211 primogeniture. In 1896 Vithalrao
died and he was succeeded by his eldest son Ganpatrao under the law of
primogeniture.
Ganpatrao died childless in 1914, leaving
behind him his two widows Anandibai and indirabai, of whom the senior widow
Anandibais defendant No. 2 in the present suit. Both the two brothers of
Ganpatrao, namely, Nilkanthrao and Anandrao had predeceased him. Nilkanthrao
left behind him one son named Firangojirao and two daughters, while Anandrao
died childless, leaving him surviving his widow Krishnabai, who later on
adopted Vithalrao, who is defendant No. 4 in the suit. Ganpatrao had left a
will bequeathing all his watan and nonwatan properties to Firangojirao and the
latter succeeded to the estate both under the will as well as under the law of
lineal promogeniture, he being the only male member of the family at that time.
Firangojirao died in 1919, leaving Bhimabai, his only daughter, who was a minor
at that time. On 23rd September, 1921, the name of Bhimabai was entered in the
village records as watandar in place of Firangojirao and in the year following
the Court of Wards, Satara, assumed superintendence of Bhimabai's estate. On
11th October, 1923, the Government of Bombay by their Resolution No. A-471
declared the Chikurde Deshmukh watan as lapsed to Government, presumably on the
ground that there was no male heir in the watan family after the death of
Firangojirao. A new entry was then made in the village register which recorded
Bhimabai not as watandar, but as heir of Firangojirao and the lands were
described as being converted into ryotvari lands after forfeiture by Government
and subjected to full assessment. On 4th of November, 1924, Krishnabai, the
widow of Anandrao, adopted defendant No. 4 as a son to her husband. On 27th
January, 1932, Bhimabai died unmarried and her estate continued under the management
of the Court of Wards. The appellants before us, who are the sister's sons of
Firangojirao, brought this suit on 5th of August, 1938, and their case, in
substance, is that after the Resolution of the Government passed on 11th 212 of
October, 1923, the Chikurde estate ceased to be a watan property and the
succession to such estate was governed by the ordinary rules of Hindu Law and
not by the provisions of Act V of 1886 which postpone relations claiming
through a female to a male member of the watan family. It was urged that the
property being the absolute property of Bhimabai and she having died while
still a maiden, the plaintiffs, being the nearest heirs of her father, were
entitled to succeed under the general rules of Hindu Law. As said already, the
defendant No. 4, who is respondent No. 2 in this appeal, was added as a
party-defendant sometime after the suit was filed and the contention raised on
his behalf was that by reason of his having been duly adopted. to Anandrao on
4th of November, 1924, he was the nearest heir to the property in suit which
was a watan property and prayed that a declaration in his favour might be made
by the court. The defendant No. 3 claimed to have been adopted as a son to her
husband Ganpatrao by Anandibai, the defendant No. 2, some time in February
1939.
The trial court on a consideration of the
evidence came to the conclusion that the Chikurde estate was an impartible
property governed by the rules of primogeniture. It was held that, it being an
impartible joint estate, the rule of survivorship still applied and
consequently on the death of Ganpatrao, without leaving any son, the estate
passed by survivorship to the next senior branch which was that of
Firangojirao. The view taken by the Subordinate Judge is that after
Firangojirao's death Bhimabai took only a provisional interest in the property
which was liable to be divested by the emergence of a male member by adoption
in the family and in fact she was legally divested of her interest in the
property when defendant No. 4 was adopted by Anandrao's widow. In the opinion
of the Subordinate Judge the resolution of the Government treating the Chikurde
estate as lapsed was premature and could not be made legally so long as there
were widows living, who were capable of adopting sons. The trial judge held
further that even 213 if Bhimabai was taken to have held the property as watan
till her death, the next heir to succeed under the Bombay Act V of 1886 would
be defendant No. 4 and not the plaintiffs. The result was that the plaintiffs'
suit was dismissed. The plaintiffs then took an appeal to the High Court of
Bombay and this appeal was heard by a Division Bench consisting of Macklin in
and Rajadhyaksha JJ. The learned Judges dismissed the appeal and confirmed the
decision of the trial court, though the reasons given by them are not the same
as those given by the trial judge. It was held by the High Court, on a
construction of the Sanad granted to Vithalrao in 1892, that the order of lapse
or forfeiture of the watan estate passed by the Government in the year 1923 on
the ground of failure of male heirs was not a valid and legal order and
although under the relevant clause of the Sanad the Government could, in the
absence of male heirs, resume the watan in the sense that they could make the
property liable to full assessment, the other incidents of the watan estate
still continued. Consequently, Act V of 1886 would still govern succession to
such property and defendant No. 4 had preferential rights over the plaintiffs
under section 2 of that Act. It is against this decision that the plaintiffs
have come up on appeal to this court.
The learned Counsel appearing on behalf of
the plaintiffs-appellants has raised a two-fold contention in support of the
appeal. It has been contended in the first place that the High Court was in
error in holding that the Chikurde estate retained its watan character even
after it was resumed by the Government by its Resolution of 11th October, 1923;
and if it was non-watan, the plaintiffs would be nearer heirs to Bhimabai than
defendant No. 4. The other contention raised is that even if the property
remained watan in the hands of Bhimabai, the latter would have to be regarded
as a watandar in the true sense of the word and would be a fresh stock of
descent. In that view the plaintiffs would come within the family of 28 214
watandar as defined in Bombay Act V of 1886, whereas the defendant No. 4 would
be outside the family.
The points undoubtedly are interesting, but
having regard to the view which we have decided to take, it would not be
necessary to investigate the merits of either of them. It may be pointed out
that the learned Judges of the High Court proceeded throughout on the
assumption that the plaintiffs would have preferential rights of succession if
the property was regarded as non-watan in the hands of Bhimabai. It is only if
the property was watan that the Bombay Act of 1886 will apply and the
plaintiffs, who were descended through females, would be postponed to defendant
No. 4 who by adoption became a male member of the family. Mr. Setalvad,
appearing for defendant No. 4 who is respondent No. 2 in this appeal, contended
before us that this assumption is wrong, and that even if the property was
regarded as nonwatan property and belonging absolutely to Bhimabai as her
stridhan, still as heir of Bhimabai's absolute property the defendant No. 4
would have higher rights than the plaintiffs. As this point was not touched
upon in the judgments of either of the courts below, we heard the learned
Counsel on both sides at great length upon it and the conclusion that we have
reached is that the contention of the learned AttorneyGeneral is well-founded
and must prevail.
For the purpose of this argument we would
assume that the property in suit was non-watan stridhan property of Bhimabai
and the only question is, as to who amongst the rival claimants would be the
nearer heir after her death according to the Hindu Law of inheritance ? It is
admitted that Bhimabai died while she was a maiden and that a maiden's property
under the Hindu Law goes in the first place to her uterine brothers, in default
of them to the mother and then to the father. This is according to the text of
Baudhayana (1)which is accepted by all the commentators. Viramitrodaya adds to
this that "on failure of mother and father it goes to their (1) See
Mitakshara, Chap. II, sec. XI, para 30.
215 nearest relations"(1). It has been
held in a large number of cases that the expression "nearest relations of
the parents" means and refers to the sapindas of then, father and in their
default the sapindas of the mother both in order of propinquity(2). In the case
c before us, both the plaintiffs and defendant No. 4 are sapindas of
Firangojirao, the plaintiffs being the sister's sons of Firangojirao, while the
latter is his paternal uncle's son. It is not disputed that apart from the
changes introduced by the Hindu Law of Inheritance (Amendment) Act, (Act II of
1929), the place of the paternal uncle's son in the line of heirs under the
Mitakshara Law of Succession is much higher than that of the sister's son and
the Mayukha Law, which prevails in the State of Bombay, does not make any
difference in this respect. Under the Mitakshara Law, the paternal uncle comes
just after the paternal grandfather and his son follows him immediately. By Act
II of 1929, however, four other relations have been introduced between the
grandfather and the paternal uncle and they are the son's daughter, daughter's
daughter, sister and sister's son, and the paternal uncle and his son are thus
postponed to these four relations by the Hindu Law of Inheritance Act of 1929.
The question is, whether the provisions of this Act can at all be invoked to
determine the heirs of a Hindu female in respect of her stridhan property. The
object of the Act as stated in the preamble is to alter the order in which
certain heirs of a Hindu male dying intestate are entitled to succeed to his
estate; and section 1 (2) expressly lays down that "the Act applies only
to persons who but for the passing of this Act would have been subject to the
Law of Mitakshara in respect of the provisions herein enacted, and it applies
to such persons in respect only of the property of males not held in
coparcenary and not disposed of by will". Thus the scope of the Act is limited.
It governs succession only to the separate property of a Hindu male who dies
intestate. It does (1) See Viramitrodaya, Chap. V, Part II, Sec. 9.
(2) See Mayne's Hindu Law, 11th edition, Art.
621, page 741.
216 not alter the law as regards the
devolution of any other kind of property owned by a Hindu male and does not
purport to regulate succession to the property of a Hindu female at all. It is
to be noted that the Act does not make these four relations statutory heirs
under the Mitakshara Law under all circumstances and for all purposes;it makes
them heirs only when the propositus is a male and the property in respect to
which it is sought to be applied is his separate property. Whether this
distinction between male and female propositus is at all reasonable is another
matter, but the language of the Act makes this distinction expressly and so
long as the language is clear and unambiguous, no other consideration is at all
relevant. This is the view which has been taken, and in our opinion quite
rightly, in a number of cases of the Madras, Patna and Nagput High Courts(1).
We are not unmindful of the fact that a contrary view has been expressed in
certain decisions of the Bombay, Lahore and Allahabad High Courts (2). The line
of reasoning that is adopted in most of the decisions where the contrary view
is taken can be thus stated in the language of Mr. Justice Somjee (3):__
"The Act is not sought to be applied to determine the succession to the
stridhan of a Hindu maiden but is sought to be used by the petitioner to
ascertain the fourth class of heirs to the stridhan of a Hindu maiden mentioned
at page 139 of Mulla's Hindu Law...... The heirs of the father at the time of
her death have to be ascertained in accordance with the Hindu Law as it existed
at the time of the death of Bai Champubai. Thus the Act comes into operation
for ascertaining the order in which the heirs of her father would be entitled
to succeed to his estate, because the heirs of the father (1) Vide Manda
Mahalakshmamma v. Mantravadi (I.L.R. 1947 Mad. 23); Shakuntalabai v. Court of
Wards (I.L.R. 1942 Nag.
629); Talukraj Kuer v. Bacha Kuer (I.L.R. 26
Pat. 150);
Kuppuswami v Manickasari (A.I.R. 1950 Mad.
196).
(2) Shamrao v. Raghunandan (I.L.R. 1939 Bom.
228); Mst.
Charjo v. Dinanath (A.I.R. 1937 Lah. 196);
Kehar Singh v. Attar Singh (A.I.R. 1944 Lah. 442); Indra Pal v. Humangi Debi
(I.L.R. 1949 All. 816).
(3) Vide Shamrao v. Raghunandan (I.L.R. 1939
Bom. 228 at 230).
217 in the order of propinquity who would be
entitled to succeed to him if he died on August 3, 1937, would be the heirs of
Bai Champubai in the absence of the uterine brother, the mother and the
father." It is true that we have got to ascertain who the heirs of the
father are at the date when the daughter dies, but the enquiry is for the
purpose of finding out who the successor to the estate of the daughter is. This
being the subject of the enquiry, the operation of Act II of 1029 is excluded
by its express terms and for that purpose the Act is to be treated as
non-existent. In other words, the stridhan heirs are to be ascertained with
reference to the general provisions of the Hindu Law of Inheritance ignoring
the statutory heirs who have been introduced by the Act.
The fallacy in the line of approach adopted
in these cases seems to be that they treat the Inheritance Act of 1929 as
amending or altering the Mitakshara Law of succession in all cases and for all
purposes, whereas the Act has absolutely no operation when succession to the
separate property of a male is not the subject-matter of investigation. The
result is that in our opinion the plaintiffs are not the nearest heirs of
Bhimabai even assuming that the property was nonwatan and belonged to her
absolutely. The appeal will thus stand dismissed. We make no order as to costs
in this appeal except that defendant No. 1, the Court of Wards, would have its
costs as between attorney and client out of the estate.
The order for costs made by the courts below
will stand.
Appeal dismissed.
Agent for the appellant: M.S.K. Sastri.
Agent for respondent No. 1: P.A. Mehta.
Agent for respondent No. 2: K.J Kale.
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