Smt. Kasturi Devi Vs. Deputy Director of
Consolidation & Ors  INSC 281 (4 November 1976)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 2595 1977 SCR (2) 25 1976
SCC (4) 674
Hindu Succession Act, 1956--Whether
remarriage would bar a mother from succeeding as son's heir.
On the demise of Karuna, there were two rival
claims for inheritance to his property. One by the appellant who claimed it as
his widowed mother,' and the other by his father's brother who contended that
the appellant had remarried and was thereby barred from succeeding as Karuna's
heir. After the consolidation officer had decided against her, and the
settlement officer, Etah Camp, Aligarh, in her favour, the Deputy Director of
Consolidation decided a revision petition against the appellant holding that
her remarriage excluded her from the inheritance. Thereafter, the appellant
unsuccessfully filed a writ petition before the High Court.
Allowing the appeal, the Court
HELD: Kasturi claimed inheritance not as a
widow of her husband Madhua but as the mother of Karua. We are entirely in
agreement with the view that "unchastity of a mother is no bar to her
succeeding as heir to her son, nor does her remarriage constitute any such
bar". Under the Hindu law, the bar of inheritance would not apply to a
mother, as it would to a widow. [27B-D] 'Hindu Law' 14th Edn. clause iii) p.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 789 of 1975.
(Appeal by Special Leave from the Judgment
and Order dated 25.2.1975 of the Allahabad High Court in Civil Misc. Writ No.
3756 of 1971).
E.C. Agarwala, for the Appellant.
B. Datta, for Respondent No. 2.
The Judgment of the Court was delivered by
FAZAL ALI, J.---This appeal by special leave involves a pure question of law
regarding inheritance to the property of one Karua. Briefly put, the case of
the appellant was that the disputed Khata was recorded in the name of Karua the
son of Madhua who died leaving behind his widow Kasturi and his son Karua. He
had two brothers Khushi Ram and Lekhraj who claimed to be the next
reversioners. It is obvious that on the death of Madhua, Kasturi as the widow
got half share in the property and the other half went to Karua. The dispute
seems to have arisen on the death of Karua when two rival claims were put
forward, one by Kasturi who contended that she was entitled to inherit as
mother of Karua, whereas Khushi Ram averred that as Kasturi had married Lekhraj
she should be divested of her interest and excluded from inheritance as a
result of which the property would pass on to Khushi Ram and Lekhraj in equal
shares 26 as next reversioners. The appellant also denied the fact that Kasturi
had remarried Lekhraj. The first Court of the Consolidation Officer negatived
the claim of Kasturi and directed mutation to be made in the name of Khushi Ram
under the provisions of the U.P. Consolidation of Holdings Act. The present
appellant filed an appeal before the Settlement Officer, Etah Camp, at Aligrah,
against the decision of the Consolidation Officer who reversed the finding of
the Consolidation Officer and held that as the re-marriage of Kasturi with
Lekhraj had not been proved, the appellant Kasturi was entitled to be recorded
in the revenue papers. Against this decision there was a revision by Khushi Ram
before the Deputy Director of Consolidation who set aside the order of the
Settlement Officer and restored that of the Consolidation Officer. The Deputy
Direct. or of Consolidation held that there was abundant evidence to prove that
Kasturi had re-married Lekhraj and therefore, in law she would be excluded from
inheriting the property and was not entitled to be mutated in respect of the
Khata in question. The appellant thereupon unsuccessfully filed a writ petition
before the High Court and hence this appeal before this Court.
Learned counsel for the appellant has argued
this appeal on the basis of the facts proved in this case. He has not, and
could not, assail the finding of fact arrived at by the Deputy Director of
Consolidation which was the last revisional court in this case. Before
proceeding to determine the point in controversy, it may be necessary to state
the admitted facts. In the first place it is not disputed that the claim of
Kasturi was made after the death of Karua.
By that time Kasturi as the widow of Madhua
had already inherited half the share. So the dispute centered round the share
of Karua alone. The finding of fact arrived at by the Deputy Director of
Consolidation that Kasturi had remarried Lekhraj cannot be disturbed. In fact
there was some controversy regarding the dates of the death of Madhua or the
re-marriage of Kasturi with Lekhraj. The position however, seems to have been
set at rest by the evidence of the respondent himself who deposed that Madhua
died about 10 years from the date of deposition which would take us to the year
1960. The witness further admits that Kasturi remarried Lekhraj 2 or 3 years
after Madhua's death which would take us to 1963. The respondent further
deposes that Karua died 11/2 years from the date of deposition which fixes the
death of Karua in the year 1970. These dates are important to show that
inheritance of both Karua and Kasturi would be governed by the provisions of
the Hindu Succession Act which had come into force even during the lifetime of
We may now examine the contentions raised by
counsel for the appellant. Counsel submitted that assuming that Kasturi had
remarried Lekhraj she had acquired an absolute interest in the property and no
question of divestment of the property could arise in view of the provisions of
the Hindu Succession Act. Secondly, it was argued that Kasturi in the instant
case put forward her claim for inheritance not as widow of Madhua but as mother
of Karua,. because it was the property of Karua which was in dispute. In the
view that we take in the present appeal, it is not necessary at all to 27
decide as to whether or not Kasturi would be disinherited or divested of the
property even after having acquired an absolute interest under the Hindu Law.
This is a moot question and not free from difficulty. We will, however, assume
for the sake of argument that as wife of Madhua Kasturi might be divested of
her interest on her remarriage with Lekhraj. It is plain, however, in this case
that the dispute arises over the property of Karua and qua Karuna's property,
Kasturi claimed inheritance not as a widow of her husband Madhua but as the
mother of Karua. The Deputy Director off Consolidation seemed to think that the
bar of inheritance would apply to a mother as such as to a widow and on this
ground he refused to accept the claim of the appellant. Learned counsel for the
respondents supported the stand taken by the Deputy Director of Consolidation.
We are, however, unable to agree with the view taken by the Deputy Director of
Consolidation which appears to be contrary to the written text of the Hindu
Law. Mulla in his 'Hindu Law', 14th Edn, while describing the incidents of a
mother regarding inheritance under clause (iii) observed at p. 116 as follows:
"(iii) Unchastity and
remarriage---Unchastity of a mother is no bar to her succeeding as heir to her
son, nor does remarriage constitute any such bar." A large number of
authorities have been cited in support of this view. We find ourselves entirely
in agreement with this view. Our attention has not been invited to any text of
the Hindu Law under which a mother could be divested of her interest in the
property either on the ground of unchastity or re-marriage. We feel that the
application of bar of inheritance to the Hindu widow is based on the special
and peculiar, sacred and spiritual relationship of the wife and the husband.
After the marriage, the wife becomes an absolute partner and an integral part
of her husband and the principle on which she is excluded from inheritance on
re-marriage is that when she relinquishes her link with her husband even though
he is dead and enters a new family, she is not entitled to retain the property
inherited by her.
The same, however, cannot be said of a
mother. The mother is in an absolutely different position and that is why the
Hindu Law did not provide that even the mother would be disinherited if the
In these circumstances we are satisfied that
the view of the Deputy Director of Consolidation is legally erroneous.
The High Court erred in not interfering with
it even though a pure question of law was involved and has failed to exercise
jurisdiction vested in it by law. As the case is a very old one and does not
require any further investigation, we do not propose to remand the case to the
For these reasons, therefore, the appeal is
allowed, the orders of the High Court and the Deputy Director of Consolidation
are set aside, and the order of the Settlement Officer directing the mutation
of the name of Kasturi is restored. In the circumstances of this case, there
will be no order as to costs.
M.R. Appeal allowed.