Satya Charan Dutta Vs. Urmilla Sundari
Dassi & Ors [1969] INSC 228 (9 September 1969)
09/09/1969 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.
CITATION: 1970 AIR 1714 1970 SCR (2) 294 1970
SCC (2) 868
ACT:
Hindu Succession Act (30 of 1956), ss. 8, 9,
11, 15 and Hindu widow dying intestate--Husband's brothers and a sister only
heirs --Property, that of husband--If brothers take in preference to sister or
all take equally.
HEADNOTE:
Under ss. 15 and 16 of the Hindu Succession
Act, 1956, which deal with rules regarding succession to the property of a
female Hindu, where the property is that of her husband, the heirs would be
those set out in 8 Under s.
8, there arc two classes of heirs mentioned
in the Schedule to the Act. In Class 11 there are IX entries and only in
entries 11, 111 and IV the heirs are mentioned as against arabic numerals.
'Brother' and 'sister' arc mentioned as items (3) and (4) in entry-II of Class
11. Section 9 lays down that among the heirs specified in the Schedule those in
Class I shall take simultaneously and to the exclusion of all other heirs and
those in the entry-I in Class II shall be preferred to those in entry-II and so
on.
A Hindu widow, in possession of her deceased
husband's properties, died in 1964-. She left no lineal descendants, but her
husband had three brothers and a sister surviving.
On the. question whether .the three brothers
were entitled to succeed to the property in preference to the sister, on the
ground that 'brother' is mentioned as item (3) of entry- II of Class 11,
whereas 'sister' is mentioned as item (4),
HELD: If the intention was to give preference
among the heirs in Class 11 according to Arabic numerals treating such numerical
item as a separate entry, some provision to that effect would have been made in
s. 11. Section 11 states that the property of an intestate shall be divided
among the heirs specified in any one entry in Class II so that they share
equally, and the language in ss. 9 and I 1 is not consistent with the view that
Arabic numerals constitute entries within the meaning of s. 11. Further, the
scheme of the Act is that male and female heirs should get equal treatment,
and, in Class 1, male and female heirs have been treated as equal. There is no
reason why any distinction should have been made among the heirs in Class 11 on
the ground of sex. Therefore, it is not possible, in the absence of any
indication in the sections or in the Schedule itself, to attribute such a
radical departure from the general scheme of classification that, in case of
three entries only in Class 11. (entries II, III and IV), the Legislature
intended to create an order of preference and lay down the same by the use of
Arabic numerals. [299 C-D, H; 300 B--H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1356 of 1956.
Appeal from the judgment and decree dated
December 3, 1965 of the Calcutta High Court in Appeal from Original Decree No.
85 of 1965.
295 D.N. Mukherjee, for the appellant.
M.C. Bhandare, Pratap Singh and K. Rajendra
Chaudhuri, for respondent No. 1.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by certificate from a judgment of the Calcutta
High Court.
The facts may be briefly stated. One
Ratanamala Dassi who was governed by the Bengal School of Hindu Law as modified
by the Hindu Succession Act 1956, hereinafter called the Act, died intestate in
January 1964 leaving no issue or lineal descendants. Her husband Monmotha Nath
Dutt had predeceased her. The said Ratnamala Dassi left her surviving the
appellant and respondents 2 and 3, the brothers of her husband and respondent
1, Urmilla Sundari Dassi her husband's sister. In 1964 respondent No. 1
instituted a suit for a declaration that as an heiress of Ratnamala Dassi she
had 1/4 share in the movable and immovable property left by her and that she be
allotted her share by partition of those properties. The appellant entered
appearance and took up the plea in his written statement that under the Act he
and respondents 2 and 3 being the brothers of the husband of the deceased
Ratnamala Dassi were the heirs in preference: to respondent 1 who. was the
sister of the deceased's husband. The suit was tried on the original side by a
learned Single Judge of the Calcutta High Court who granted a preliminary
decree on December 23, 1964 in favour of respondent 1 holding that she had 1/4
share in the estate left by Ratnamala Dassi. The appellant preferred an appeal
to a division bench which was dismissed.
The sole point which-has to be considered is
whether, according to the order of succession as laid down in Class II of the
Schedule to s. 8 of the Act, brother would succeed in preference to the sister
or whether the brother and sister would succeed .jointly having equal shares ?
According to s. 15(1 ) when a female Hindu dies intestate her property devolves
according to the Rules set out in s.
16. Section 15 divides the groups of heirs of
a female dying intestate into five categories described as Entries (a) to (e).
We are concerned, in the present case, with Entry (b) which is "secondly,
upon the heirs of the husband". Section 16 provides that the order of
succession among heirs referred to in s. 15 shall be and the distribution of
the intestate's property among those heirs shall take place according to the
following Rules:
Rule l:--"Among the heirs specified in
sub-section (1 ) of section 15, those in one entry shall be preferred 296 to
those in any succeeding entry, and those included in the same entry shall take
simultaneously.
Rule 2 .........................
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) 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." As the property in the present case was of the husband of
Ratnamala Dassi we have to turn to s. 8 to find out who would have been his
heirs. Section 8 reads:
Section 8 "The property of a male Hindu
dying intestate shall devolve according to the provisions of this Chapter :-
(a) firstly, upon the heirs, being the relatives specified in class 1 of the
Schedule.
(b) secondly, if there is no heir of class 1,
then upon the heirs, being the relatives specified in class 1I of the Schedule
(c) thirdly, if there is no heir of any of the two classes, then upon the
agnates of the deceased; and (d) lastly, if there is no agnate then upon' the
cognates of the deceased." The Schedule mentioned in s. 8 to the extent it
is material is reproduced below :-- CLASS 1 "Son; daughter; widow; mother;
son of a predeceased son; daughter of a predeceased son; son of a predeceased
daughter; daughter of a predeceased daughter; widow of a predeceased son; son
of a predeceased son of a predeceased son; daughter of a predeceased son of a
predeceased son; widow of a predeceased son of a predeceased son.
CLASS 11 I. Father.
297 II. (1) Son's daughter's son, (2) son's
daughter's daughter, (3) brother, (4) sister.
III .................
VII ................
VIII ................
Explanation ............. " Section 9
lays down that among the heirs specified in the Schedule those in class 1 shall
take simultaneously and to the exclusion of all other heirs and those m the
first entry in class II shall be preferred to. those in the second entry and so
on. Section 11 is to the effect that the property of an interstate shall be
divided in any one entry in class II of the Schedule so that they share
equally. Before the High Court the contention raised on behalf of the appellant
was that "brother" being prefixed by arabic numeral 3 came before
"sister" which word had the numeral (4) before it and that the object
of using the numerals within a particular group was to prescribe the order of
precedence or preference. It was also argued that the use of the arabic
numerals in groups II, III and IV of Class II must have some meaning; otherwise
the legislature would have used such numerals in respect of the heirs not only
in class II but in class I as well. The learned judges of the division bench
felt that the use of the arabic numerals appeared to be redundant but "the
combined effect of this section read with the others seems to. be that the
legislature intended that the heirs named after numerals II,III IV composed
three entries only".
We are unable to accede to the argument that
the use of arabic numerals is decisive of the point whether or not the heirs
specified in entry II of class II succeed simultaneously and equally. It is
inconceivable that a matter of such importance should have been left to the
employment of numerals alone. If the intention of the legislature was that each
class of relatives shown against the arabic numerals constituted an entry
express and specific provisions to that effect would have been made in the
substantive sections of the Act. Indeed s. Il says quite clearly that the
property of an intestate shall be divided between the heirs specified in any
one entry in class II of the Schedule so that they share equally. That language
would not be consistent with the view that file heirs shown against the arabic
numerals constitute an entry within the meaning of s. 11. The Act was meant to
lay down a comprehensive and uniform system of inheritance and its scheme is to
298 prescribe a set of rules for succession to the property of male and female
Hindus dying intestate. Sections 8 to 13 contain the general rules relating to
succession to the property of a male Hindu including the matter of
ascertainment of shares. Sections 15 and 16 contain the general rules affecting
succession to the property of a female Hindu. The rules relating to
preferential heirs are given in s.10. If the intention was to give preference
among the heirs in Class II according to. arabic numerals treating the same as
a separate entry some provision would undoubtedly have been made in s.11 for
that purpose. As noticed before it is that section which deals with the
distribution of property among heirs in class II of the Schedule. Indeed s.11
would be wholly unnecessary if each one of the heirs mentioned in each entry of
class II were to take preference to the next one in the. same entry. It is
also. significant that in class 1 male and female heirs have been treated as
equal. There is no reason why any distinction should have been made among the
heirs in class II on the ground of the heir being male or female. For instance
in entry II in class Il a brother would have preference over the sister and in
his presence the later would succeed if the submission on behalf of the
appellant is to. be accepted. No reason or justification has been suggested for
making such a distinction. Similarly on the appellant's argument the son's
daughter's son should have preference over the son's daughter's daughter. That
again would run counter to the whole scheme of the Act that male and female
heirs should get equal treatment. It must be remembered that the Act
incorporated one of the principal reforms which had become a pressing necessity
owing to the-changed social and economic conditions in Hindu society that in
succession there should be equal distribution between male and female heirs.
It is true that the draftsmen while employing
the arabic numerals in entries Il to IV of class II only are likely to have
something in mind but on the whole and in view of the reasons which have been
given above no particular significance can be given to the use of the arabic
numerals. Generally speaking numbers or numerals are employed in a statute for
the sake of convenient and easy reference but their use cannot override the
statutory provisions. Nor is it possible in the 'absence of any indication in
the sections or in the Schedule itself to attribute such a radical departure
from the general scheme of classification of heirs, as has been suggested,
namely, that in case of three entries only in class 11 the legislature intended
to create an order of preference and lay down the same by the use of arabic
numerals.
There is no merit in this appeal which fails
and it is dismissed with costs.
V.P.S. Appeal dismissed.
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