Radhika
Vs. Aghnu Ram Mahto [1994] INSC 458 (7 September 1994)
Ramaswamy,
K. Ramaswamy, K. Venkatachala N. (J)
CITATION:
1994 SCC (5) 761 JT 1995 (1) 18 1994 SCALE (4)273
ACT:
HEAD NOTE:
ORDER
1. The
appellant is the daughter of the respondent through second wife. Admittedly,
her mother inherited the properties of her maternal grandfather. The appellant
is the only issue to her mother. When her mother died intestate, the
respondent-husband filed the Partition Suit No. 39 of 1979 in the Court of Special
Sub-Judge, Ranchi claiming half the share as Class I
heir of his wife. The trial court dismissed the suit on the ground that during
the lifetime of the mother of the appellant, she had bequeathed the properties
to the appellant under a gift deed and that therefore, the decree cannot be
granted as she died after she was divested of her possession. On appeal, the
District Judge reversed the decree and held that the gift is not valid and that
the appellant and respondent are Class I heirs and decreed the suit for
partition in equal moiety.
In
Second Appeal No. 17 of 1982 by judgment and decree dated 9-11-1983 the High Court dismissed the same. Thus this appeal
by special leave.
2. The
facts are not in dispute, namely, the mother of the appellant inherited the
suit property from her father.
Section
15 of the Hindu Succession Act, 1956 regulates the succession to the estate of
female .Hindus. Sub-section (1) provides that:
"The
property of a female Hindu dying intestate shall devolve according to the rules
set out in Section 16,- (a) firstly, upon the sons and daughters (including the
children of any predeceased son or daughter) and the husband;
(b) secondly,
upon the heirs of the husband;
and so
on in the order specified. But sub-section (2) with non obstante clause
excludes the applicability of sub- section (1). Clause (a) of sub-section (2)
provides that:
"(a)
any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including the
children of any pre- deceased son or daughter), not upon the other heirs
referred to in sub-section (1) in the order specified therein, but upon the
heirs of the father;" [clause (b) is not relevant, hence omitted.]
3. A
reading thereof clearly indicates that for the property inherited by a female
Hindu from her father or mother, in other words female's paternal side, in the
absence of her son, daughter or children of the predeceased son 763 or
daughter, the succession opens to the heirs of the father or mother and not to
Class I heirs in the order specified in sub-section (1) of Section 15 and in
the order of Section
16. In
other words, the children and the children of the predeceased son or daughter
of the Hindu female alone are entitled to get such property. Thus, husband
stands excluded from the succession to the property inherited by female Hindu
from her father's side. Accordingly, we hold that since the mother of the
appellant had inherited the suit property from her grandfather, her husband-respondent
stood excluded from intestate succession to the estate left by her. The courts
below obviously had overlooked the provision in Section 15, in particular
sub-section (2) thereof, and illegally granted a decree.
4. The
appeal is accordingly allowed. The decree of the High Court in the second
appeal and that of the appellate court in the first appeal are set aside.
Though for different reasons, the decree of the trial court stands confirmed,
but in the circumstances, without costs.
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