Shakuntala Sawhney Vs. Kaushalya
Sawhney  INSC 77 (4 April 1979)
Procedure-Duty of Subordinate Courts in
dealing with family disputes.
The purpose of law and justice (Dharma) is
promotion of cohesion and not production of fission. A judgment often possesses
a sublime essence and a humdrum component. The sublime element consists in the
optimistic endeavour to bring parties together so that the litigation may not
cut them as under, especially when they are blood relations like sisters. The
present appeal in its happy conclusion, holds out the higher lesson that hate
and fight are dissolved by basic human fellowship, even after bitter litigative
struggle, if the Bench and the Bar pursue consensual justice and bring into
play conciliatory processes and successfully persuade the parties to see reason
and right beyond bare law. If the effort succeeds, the court and counsel derive
spiritual fulfillment and get satisfaction. The finest hour of justice arrives
propitiously when parties, despite falling apart, bury the hatchet and weave a
sense of fellowship or union. [640 D] The present case is not merely a just
adjustment of a bitter litigation but a path-finder for the subordinate courts
in dealing with family or like disputes. [643 B] The text and the context and
the application of traditional rules of statutory interpretation, in a given
case, might leave the position in an unsatisfactory dilemma of dual import.
Even an equitable approach may not necessarily help reach a just solution
because equity shifts as the situation varies. Contradictory positions taken by
different High Courts add to the difficulty and result in the deleterious
uncertainty of the law. The Supreme Court may resolve the conflict by
exercising its preference guided by the language and the milieu and following
the customary canons of statutory interpretation. While its decision will be
binding on account of Art. 141 of the Constitution it may still be fallible
because the intendment of Parliament is best brought out by legislative
clarification in some cases.
[640 H] The appellant and the respondent were
step-sisters- daughters of a common father but of different mothers. The father
who owned vast properties had died before the coming into force of the Hindu
Succession Act 1956. The respondent's mother who inherited her husband's estate
died after the coming into force of the 1956 Act. The High Court dismissed the
appellant's claim for a half share in the properties under s. 15(1)(a) of the
Act. The specific point of claim, whether a son and daughter in the setting of
15(1)(a) of the Act, includes step-son and
step-daughter or embraces only the son and daughter of the deceased female
propositus, has escaped the Parliament's attention while passing the
[At the Court's suggestion the parties came
to a compromise assisted by counsel on both sides.] 640 Tulzapurkar, J.
Parliament should clarify its intention
regarding s. 15(1)(a) of the Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 348 of 1977.
Appeal by special leave from the Judgment and
Order dated 21-9-1976 of the Punjab & Haryana High Court in Letters Patent
Appeal No. 89/76.
W. C. Chopra for the appellant.
M. L. Varma for respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-A judgment often possesses a sublime essence and a humdrum
component. The appeal before us, in its happy conclusion, holds out the higher
lesson that hate and fight are dissolved by basic human fellowship, even after
bitter litigative struggle, if the Bench and the Bar pursue consensual justice,
and bring into play conciliatory processes, and successfully persuade the
parties to see reason and right beyond bare law. If the effort succeeds, as it
has in this case, court and counsel derive spiritual fulfilment and get
Two sisters, apparently of the affluent
bracket, with a common father but different mothers, became estranged when one
(the appellant) claimed a half share in the estate of the father, on whose
death before 1956, the respondent's mother inherited her husband's estate but
died after 1956, possessed of her husband's assets and her own. When intestate
succession to her opened the plaintiff-appellant claimed a half share therein,
founded on s. 15(1)(a) of the Hindu Succession Act (the Act, for short). The
High Court negatived the right to a share as an heir, and, in doing so,
preferred the interpretation of the provision adopted by the then Mysore High
Court (AIR 1962 Mysore 160) as against the meaning attached to the provision by
the Allahabad High Court (1968 Allahabad Law Journal 488). In fact, a plurality
of decisions has been brought to our notice indicating a plain conflict.
Interpretation is sometimes a projection of judicial inclination to do justice.
The question of law canvassed before us turns
on the meaning of "son" and "daughter" in the setting of s.
15(1)(a) of the Act. Do the expressions include step-son and step-daughter or
embrace only the son and daughter of the deceased female propositus ? The text
and the context and the application of traditional rules of statutory
interpretation leave the position in an unsatisfactory dilemma of dual import.
Even an equitable approach may not necessarily help reach a just solution,
because equity shifts as the situation varies, as illustra- 641 tions presented
to us convinced us. Thus, the problem is a little tricky and may well arise
frequently. Contradictory positions already taken by different High Courts add
to the difficulty and result in the deleterious uncertainty of the law which
may well incite, as it has done here, close relations to quarrel over property.
Blood may be thicker than water, but wealth breaks all relations on a word of
material value sets. The Supreme Court may, when the High Courtís disagree,
resolve the logomachic conflict by exercising its preference guided by the
language and the milieu and following the customary canons of statutory
interpretation. While its decision will be binding on account of Article 141 of
the Constitution, it may still be fallible because the intendment of Parliament
is best brought out by legislative clarification. In the present instance, we
have a hunch that the specific point of claim by stepsons and step-daughters to
inherit to the estate of a deceased female has escaped Parliament's attention
while fashioning the legislation. This is not surprising when we appreciate the
push and pressure, hurry and worry of law- making modalities. In such a
situation, when a sharp conflict has shown up in the rulings of courts, the
matter should not be left in doubt or to forensic-linguistic exercises but must
be settled by legislative action on the part of Parliament, making explicit its
policy on this branch of the Hindu Succession Act. Inaction leads to more
litigation, speculation and compulsion for judicial legislation by the Supreme
Court. Drafting lapses are understandable but when differences of interpretation
come into the open, delay in correctional parliamentary performance is fraught
with negative litigative potential.
We are hopeful that the Indian draftsmen will
disprove the old English jingle:
I'am the parliamentary draftsman I compose
the country's laws And of half the litigation I'am undoubtedly the cause.
The sublime element which we adverted to in
the beginning consists in the optimistic endeavour to bring parties together so
that the litigation may not cut them asunder, especially when they are sisters.
The purpose of law and justice (dharma) is promotion of cohesion and not
production of fission. From this angle, as the arguments proceeded and the
legal tempers flared up, we suggested that instead of escalating estrangement
the parties may as well compose themselves and their quarrels and re-establish
their sisterly relations making a somewhat amicable adjustment of the lis
before us. Viewing the case from this perspective of tranquillity versus
turbulence, but making it perfectly 642 plain that suggestions from the court
towards this end will not affect its unbiased adjudicatory duty in case it
became necessary, we ventured tentative solutions. Counsel took up the
suggestion in the proper spirit and we must record our admiration for the strenuous
effort made by the young lawyer Shri M. L. Varma who did his best and
successfully persuaded his client who had won in the High Court to come down to
a compromise. We need hardly say that such a seasoned and senior counsel like
Shri Lal Narain Sinha could be counted upon to aid in the process, and he did.
The finest hour of justice arrives propitiously when parties, despite falling
apart, bury the hatchet and weave a sense of fellowship or reunion. In the
present case, counsel today put in a joint statement(1) signed by the parties
setting down the terms on which they have agreed. We consider it a success of
the finer human spirit over its baser tendency for conflict.
Now we come to the humdrum part of the case.
According to the compromise some landed properties are to be made over to the
appellant. Some cash is also to be paid to the appellant by the respondent. The
discretion to fix the sum has been left by the parties to us. We direct that
the respondent shall pay a sum of Rs. 75,000/- to the appellant within two
weeks of the attachment of the moneys by the trial court being withdrawn. The
plaintiff/appellant undertakes that she will get the attachment withdrawn and
we direct her to do so. We make it further clear that this withdrawal of the attachment
is to facilitate the making of the payment of Rs. 75,000/- from out of the sum
now lying in bank deposit. We also direct that landed property worth Rs. 25,000/-
will in addition be made over to the appellant from out of the suit property.
The further direction must justly follow-and we make-that all the rents due
from the properties allotted to the appellant under the joint statement prior
to this date and subsequent to this date shall be collectible by the appellant.
If they have already been deposited in court, they will be withdrawn by the
appellant. The actual allocation of the lands under the joint statement will be
made by Mr. Prem Nath Handa within two months from today. Both sides agree on
Shri Handa being impartial and competent to make the said allotment. His
allotment once made will not be challengeable. Shri Handa pursuant to this
direction will make the allocation and put in a statement to that effect in the
trial court and that statement will be deemed to be part of this decree.
643 We need hardly mention-it is so
obvious-that the land that remains will belong entirely to the respondent and
there will be no more claims from the appellant on the respondent in regard to
the estate of her step-mother, or in respect of its income or otherwise.
Before we part with the case we should like
to emphasise that having regard to the merits of the claim, this is not merely
a just adjustment of a bitter litigation but a path-finder for the subordinate
courts in dealing with family or like disputes. Indeed, we have had to take the
lead in giving shape to the settlement as it has finally emerged. Counsel on
both sides have also, statesman-like, assisted in producing the settlement. We
command this example to the judiciary and to the Bar and reinforce it with what
Gandhiji has recorded in his autobiography:
"I have leant the true practice of law.
I had learnt to find out the better side of human nature and to enter men's
hearts. I realised that the true function of a lawyer was to unite parties
driven asunder. The lesson was so indelibly burnt into me that a large part of
my time during the twenty years of my practice as a lawyer was occupied in
bringing about private compromises of hundreds of cases. I lost nothing,
thereby-not even money, certainly not my soul." We allow the appeal in
part but entirely in terms of the compromise which we consider clearly
reasonable and just. There will be no order as to costs.
TULZAPURKAR, J.-Decree in terms of compromise
without costs. Parliament should clarify its intention regarding s. 15(1) (a).
P.B.R. Appeal allowed in part.