Sham Lal & Ors Vs. Amar Nath &
Ors  INSC 246 (17 September 1969)
17/09/1969 HEGDE, K.S.
CITATION: 1970 AIR 1643 1970 SCR (2) 489 1970
SCC (1) 33
Hindu Law--Stridhana--Hindu widow leaving
property not shulka--Marriage in approved form--Order of succession to
The rules relating to succession to
Stridhana, other than shulka, of a Hindu woman who was married in an approved
form of marriage are stated in Yajnyawalkya's text as: 'her kinsmen take it, if
she die without issue'. The order of succession was elaborated in the.
Mitakshara, which was translated by Colebrooke as: (i) unmarried daughter, (ii)
married daughter who is unprovided for, (iii) married daughter who is provided
for, (iv) daughter's daughter, (v) daughter's son, (vi) son, (vii) son's son,
and (viii) if there be none of these the srridhana then goes to her hugband,
and if he is dead, to the husband's heirs.
In the present case., a Hindu widow, who was
married in an approved form of marriage died leaving stridhana which was not
shulka. She did not leave behind any of the heirs mentioned in items (i) to
(vii) but there was a pre- deceased son's daughters. On the question of
preference between the son's daughters and her husband's brothers son (who was
the husband's nearest heir).
HELD: (i) Colebrooke's translation has been
accepted by the Judicial Committee and Hindu scholars as bringing out correctly
the meaning of the relevant passages in the Mitakshara, and it is now
well-settled that the' stridhana of a Hindu woman governed by Mitakshara passes
in the order mentioned in the Mitakshara. [496 H; 497 A-C] Bhirnacharya Bin
Venkappacharya v. Ramcharya Bin I.L.R.
33 Bom. 452, referred to.
(2) The contention that the expression 'without
issue' in Yajnywalkya was elaborated as 'leaving no progeny' by the Mitakshara
and that therefore the heirs (i) to (vii) should be understood as only
illustrations of the expression 'progeny' and hence, son's daughters are not
excluded from the expression 'progeny', is opposed to the commentaries of
Narada, Gautama and other commentators, and to the decisions of the Judicial
Committee and the High Courtís rendered for over a century. [497 E-H] (3) In
the matter of succession to stridhana propinquity is neither the sole nor a
principal test as shown by the fact that daughter's daughter and daughter's son
succeed in preference to the son. [498 B-C] 490 (4) The rule of interpretation
that the masculine includes the feminine and therefore 'softs son' includes
'softs daughter', is inapplicable, because, 'daughter's daughter' is shown
taking precedence over 'daughter's son'.
[489 E] (5) The Hindu Women's Rights to
Property Act, 1937, applies to the separate property left by a Hindu male and
not to the property of a Hindu letoale. [500 C-D] Kumar Raghava Surendra Sahi
v. Babui Lachmi Kuer, (1939)
1. L.R. 18 Pat. 590 and Baj Kesserbai v. Huns
Raj Morarji & Anr. L.R. 33 I.A. 176, distinguished.
Annagouda Nathgouda Patil v. Court of Wards,
 S.C.R. 208, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1954 and 1955 of 1966.
Appeals from the judgment and decree dated
May 30, 1963 the Punjab High Court in Regular First Appeal No,. 105 of 1957.
A.K. Sen and R.K. Aggarwal, for the appellant
(in C.A. No. 1954 of 1966). and respondents Nos. 5, 6, 8 and 9 (in C.A. No.
1955 of 1966).
Bishan Narain, B.P. Maheshwari and R.K.
Gupta, for the appellants (in C.A. No. 1955 of 1966) and respondents Nos. 2 to
6 (in C.A. No. 1954 of 1966).
Sarjoo Prasad, Rameshwar Prasad and A.D.
Mathur, for respondent No. 1 (in both the appeals).
S.M. Jain, for respondents Nos. 13(i) to
13(iv) (in C.A. No. 1954 of 1966) and respondents Nos. 12(i) to 12(iv) (in C.A.
No. 1955 of 1966).
Hegde, J. The question of law that arises for
decision in these appeals by certificate is whether the daughters of a
pre-deceased son of a Hindu Woman are entitled to succeed to her stridhana ?
The trial court answered the question in the affirmative but the High Court in
appeal came to the conclusion that they are not fentitled to succeed to the
estate in question.
The material facts of this case are few. For
a proper understanding of the facts of the case, it will be convenient to have
'before us the admitted pedigree of the family. It is as follows:
492 The finding of the trial court that the
suit properties are the stridhana properties of Barji was not contestect before
the High Court. In tins Court at one stage 'a feeble attempt was made on behalf
of the appellants to contest that finding. We did not permit that finding to be
challenged as the same had not been challenged before the High Court.
Therefore we proceed on the basis of that
finding. Barji died in September 1950. Her husband Patu Ram had predeceased
her. It appears that he died sometime in 1904.
Patu Ram's father Bool Chand as well as Patu
Ram's brothers Tulsi Ram, Behari Lal and Hira Lal had predeceased Barji.
Patu Ram and Barji had a son by name Jugal
Kishore wno had predeceased Patu Ram leaving behind him his widow Bindri wno died
in 1931. They had no children. Radha Kishan, the adopted son of Patu Ram and
Barji died about 20 years 'before the death of Barji leaving behind him his
widow, defendant No. 6. Radha Kishan had live children including defendants
Nos. 1 to 3 through another wife. His son Roshanlal had died a few months
before the death of Barji.
His daughter Balwanti had predeceased Barji
leaving behind her children defendants 4 and 5. Tulsi Ram's son Prahlad Rai had
also predeceased Barji leaving behind his widow defendant No. 8 and son
defendant No. 7. By the time succession to the estate of Barji opened all the
children of Behari Lal and Hizalal had died but some of them had children and
grand children, as, seen from the pedigree.
After the death of Barji, her properties came
to the possession of defendant No. 6. Defendant No. 1 sued for the possession
of those properties on the ground that she and her sisters are preferential
heirs to the deceased Barji.
To that suit she did not make Amar Nath, the
plaintiff in the present suit, a party. Amar Nath's application for being
impleaded as a party in that suit was opposed by the 1 st defendant and the
said application was ultimately rejected by the court. The dispute in that suit
was referred to arbitration. The arbitrators upheld the claim of defendants
Nos. 1 to 3. Thereafter the present suit was brought. the High Court as well as
in the trial court there was a triangular contest. The plaintiff claimed that
he was exclusively entitled the suit properties, defendants Nos. 1 to 3 claimed
that they are the nearest heirs to Barji; some of the other defendants
contended that they succeeded to the suit properties as co-tenants with the
plaintiff. In this Court all the contesting defendants sail together. As
mentioned earlier, the trial court 'accepted the claim of defendants Nos. 1 to
3 but the High Court held that the plaintiff was exclusively entitled to the
suit properties, he being the nearest heir to the deceased.
That finding is contested both by defendants
Nos. 1 to 3 as well as by the other contesting defendants. That. is how the
aforementioned two appeals came to be filed.
In arriving at its finding the High Court
relied on the rules of succession found in paragraph 147 of Mulla's Principles
of Hindu 493 Law (13th Edn.). It came to the conclusion that those rules are
exhaustive. On the basis of those rules, it ruled that defendants Nos. 1 to 3
were not entitled to succeed to the estate of Barji. So far as the other
defendants are concerned it rejected their claim on the ground that as between
the plaintiff and themselves the former is a preferential heir as he is the
nearest in degree to Barji.
It is the admitted case of the parties that
the properties in question are not shulka and that Barji was married in one of
the approved forms. Therefore while pronouncing. on the competing claims made
in this case, we must be guided by the order of succession prescribed in
paragraph 147, if the same is correct and exhaustive.
Paragraph 147 says:
"Stridhana other than shulka passes in
the following order:
(1) unmarried daughter;
(2) married daughter who is unprovided for;
(3) married daughter who is provided for;
(4) daughter's daughter;
(5) daughter's son;
(7) son's son.
If there be none of these, in other words, if
the woman dies without leaving any issue, her stridhana, if she was married in
an approved form, goes to her husband, and after him, to the husband's heirs in
order of their succession to him; on failure of the husband's heirs, it goes to
her blood relations in preference to the Government. But if she was married in
an unapproved form, it goes to her mother, then to her father, and then to the
father's heirs and then to.
the husband's heirs in preference to the
Government". The legal position is stated in identical terms in Mayne's
treatise on Hindu Law (Eleventh Edn.--Paragrah 623, pages 744 to 746) as well
as in the other text books on Hindu Law referred to at the time of the hearing.
At this stage it may be mentioned that the correctness of the order of
succession mentioned in paragraph 147 till we come to item No. 7 (son's son)
was not challenged. The same is well settled bY decided cases. It is not
necessary to refer to those cases. The only contention advanced on behalf of
some of the defendants is that after son's sons come sons' daughters.
Alternatively it was contended that the expression "son's son"
includes "son'S daughter". We have to see whether these contentions
are well founded.
The rules relating to succession to stridhana
enunciated in the text books are based on Yajnyawalcya's text "her kinsmen
take it, if she die without issue". This statement is elaborated by
Vijnyaneswara in Mitakshara. The relevant portions thereof as transtated by
H.T. Colebrooke are found in placita 8, 9, 10 and 11 in Section XI of his book
"Mitacshara". They read as follows:
494 "8. A woman's property has been thus
The author next propounds the distribution of
it: 'Her kinsmen take it, if she die without issue'.
9. If a woman die 'without issue' that is
leaving no progeny; in other Words, having no daughter nor daughter's daughter
nor daughter's son, nor son, nor son's son; the woman's property, as above
described, shall be taken by her kinsmen; namely her husband 'and the rest, as
will be (forthwith) explained.
10. The kinsmen have been declared generally
to be competent to succeed to a woman's property. The author now distinguishes
differec at heirs according to the diversity of the marriage ceremonies. The
property of a childless woman, married in the form denominated Brahma, or in
any of the four (unblamed modes of marriage), goes to her husband: but, if she
leave progeny, it will go to her (daughter's) daughters: and, in other forms of
marriage (as the Asura & c.), it goes to her father (and mother, on failure
of her own issue).
11. Of a woman dying without issue as before
stated, and who, had become a wife by any of the four modes of marriage
denominated Brahma, Daiva, Arsha and Prajapatya, the (whole) property, as
before described, belongs in the first place to her husband. On failure of him,
it goes to his nearest kinsmen (sapindas) allied by funeral oblations. But, in
the other forms of marriage called Asura, Gandharba, Racshasa and Paisacha; the
property of 'a childless woman goes to her parents, that is, to her father and
mother. The succession devolves first (and the reason has been be,fore
explained) on the mother, who is virtually( exhibited (first) in the elliptical
pitrigami implying 'goes (gachhati) to both parents (pitarau;), that is to the
mo ther and to the father'. On failure of them, their next of kin take the
succession." These passages have received interpretation at the hands of
the Judicial Committee as well as the High Courts in India and the law is now
settled as to the mode of succession to stridhana under Mitakshara until we
reach son's son. The controversy now is as to who should succeed to such an
estate if none of the heirs mentioned in items Nos. 1 to. 7 in paragraph 147 of
Mullas Hindu Law is in existence at the time of the death of the woman
495 Mr. A.K. Sen, learned Counsel for some of
the defendants contested the correctness of Colebrooke's translation in certain
respects. He wanted us to examine the original text to find out whether the
translation found in placita 9 is correct ? The parties did not place before us
either an admitted translation of the original text or even an official
translation. Colebrooke is a distinguished oriental scholar. The Judicial
Committee as well as the various High Courts in this country have relied on his
translation of Mitakshara in dealing with the question of inheritance. Jogendra
Nath Bhattacharya in his commentary on Hindu Law( 2nd Edn ) deals with the
order of succession under Mitakshara to stridhana property in Chapter VI of
that book. His translation of the relevant commentaries accords with those made
by Colebrooke. To the same effect is the opinion expressed by Justice
Chandavarkar in Bhimacharya Bin Venkappacharya v. Ramcharya Bin Bhimacharya(1).
Hence we are unable to agree with Mr. Sen that Colebrooke's translation does
not bring out accurately the meaning of the relevant passages in Mitakshara.
Colebrooke in his book 'Mitakshara' published in 1869 sets out the order of
succession to a woman's stridhana properties at page 15 8 thus:
Maiden daughter .. 1 Unendowed married
daughter .. 2 Endowed married daughter .. 3 Daughter's daughter .. 4 Daughter's
son .. 5 Son .. 6 Grandson .. 7 Husband .. 8 If the contention of defendants is
correct then son's daughter and not husband should have come after the
grandson. But that is not the case.
Mr. Bishan Narain, learned Counsel for
defendants Nos. 1 to 3 contended that the list given in Mitakshra is only
illustrative and not exhaustive. He urged that Yajnyawalcya had stated that
"a woman's property would devolve on her kinsmen if she died without
issue" which means that it would devolve on her progeny which expression
includes son's daughter as well. In this connection he also relied on
Vijnyaneswara's commentary stating that the expression 'without issue' found in
Yajnyawalcya text means "leaving no progeny". On the basis of these
statements he contended that even according to Vijnyaneswara, the deceased
woman's progeny would take her stridhana in preference to her kinsmen including
her husband. On the basis of this premise he proceeded to argue that the other
words used in placita 9 viz.:
(1)I.L.R 33 Born. 452 496 "having no
daughter nor daughter's daughter nor daughter's son nor son nor son's son"
should be understood as merely being illustrations of the word
"progeny". This contention is opposed to the commentaries by Narada,
Gautama and the later commentators. More than that it runs counter to the
decisions rendered by the Judicial Committee and the various High Courts during
the last over a century. It is now well settled that stridhana of a Hindu woman
governed by Mitakshra passes in the order mentioned in Mitakshra and the
children of the deceased woman do not take the same as a body either jointly or
as tenants in common. Only the heirs belonging to a class take the properties
as tenants in common.
Mr. Bishan Narain next contended that under
Mitakshra propinquity is the test of inheritance. Therefore there is no reason
why the deceased woman's husband's brother's son should take the properties in
preference to her son's daughters. We do not think that in the matter of
succession to stridhana propinquity was considered by the law givers as the
sole or even the principal test, otherwise there is no justification for a
daughter's daughter or a daughter's son to succeed to the estate of a woman in
preference to her son. It is true that it is not easy to find out the reason
behind the rules relating to succession to stridhana. But that is equally true
of many other branches of our family laws. These contradictions are inevitable
in society- religious matters particularly when our social laws were controlled
by our religious beliefs and our law givers were our religious preceptors. It
is for the legislature to step in 'and bring about harmony between the society
and the laws governing it. That is why our Parliament enacted several statutes
in 1955 to amend the Hindu Law in various respects.
We are unable to accept the contention of Mr.
Bishan Narain that the expression son's son includes son's daughter as
according to the rules of interpretation the masculine includes the feminine.
That rule of interpretation is inapplicable in the present case as daughter's
daughter succeeds to the stridhana in preference to daughter's son.
The order of succession prescribed clearly
rules out the application of that rule of interpretation.
Mr. Sen in support of his contention that on
a true interpretation of the relevant passages in 'Mitakshra', defendants Nos.
1 to. 3 are preferential heirs to deceased Barji, relied on certain passages in
some of the decided cases. First he referred to the decision of the Patna High
Court in Kumar Raghava Surendra Sahi v.. Babui Lachmi Kuer(1). Therein the
dispute related to the succession. to the properties left by a maiden 'and not
by a married (1) 1939 I.L.R. 18 Pat. Sqo (2) L.R. 33 I.A. 176.
497 woman. The rules relating to the
succession to the stridhana of a deceased maiden are wholly different from
those relating to succession to the stridhana of a married woman. Therefore the
observations made in regard to those rules have no relevance for our present
purpose. He next invited our attention to certain passages in the decision of
the Judicial Committee in Bali Kesserbai v. Hunsraj Morarji and anr.(1).
Therein the dispute was between Bai Kesserbai the surviving co-widow of the
deceased Bachubai's husband Koreji Haridass, Hunsraj Morarji the separated
nephew of Koreji, being the son of his eldest brother, who predeceased Bachubai
and Bai Monghibai, the widow of 'a younger brother of Koreji named Ranchordass
Haridass. The question for consideration by the Judicial Committee was as to
the true scope of the latter part of the placing 9 in Colebrooke's Mitakshara
which says "if a woman die without issue, that is, leaving no progeny
....the woman's property ............ shall be taken by her kinsmen namely her
husband and the rest as will be forthwith explained". Their Lordships
observed that there can be no reasonable doubt that according to Mitakshara
definition of sapinda, husband and wife are sapindas to each other and the
co-widow of the husband of the deceased was the nearest sapinda of the deceased
woman's husband and hence entitled to succeed to the estate in question. This
decision again does not bear on the point under consideration.
Lastly Mr. Sen contended that in view of the
Hindu Woman's Rights to Property Act (XVIII of 1937), it must be held that
defendants 1 to 3 are nearer heirs to the deceased than the plaintiff. This
contention was negatived by the High Court on the basis of the rule laid down
'by this Court in Annagouda Nathgouda Patil v. Court of Wards and anr. (2)
wherein this Court dealing with Act 11 of 1929 observed:
"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 not alter the law
as regards the (2)  S.C.R. 208.
498 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
proportion is a male and the property in respect to which it is sought to be
applied is his separate property." Similar would be the position under the
Hindu Woman's Right to Property Act, 1937.
Section 3(1) of that Act which provides for
the devolution of the property reads thus:
"When a Hindu governed by the Dayabhaga
School of Hindu Law dies intestate leaving any property and when a Hindu
governed by any other school of Hindu law or by customary law dies intestate
leaving separate property his widow or if there is more than one widow all his
widows together shall, subject to the provisions of sub-section (3) be entitled
i,n respect of property in respect of which he dies intestate to the same share
as a son ...... " From this provision it is clear that Hindu Women's Right
to Property Act, 1937 applies only to the separate property left by a Hindu
male. It does not apply either to the coparcenaries property or to the property
of a Hindu female.
For the reasons mentioned above these appeals
fail and they are dismissed with costs--advocates' fee one set.