& Ors Vs. Mani Ram & Ors  INSC 438 (22 August 2000)
question for determination in this appeal is whether sister's son or
descendants of father's father's father are entitled to inherent the property
of the deceased. It is not in dispute that the right of succession in respect
of the agricultural land in question is governed by a special legislation of
the then Gwalior State, namely, Quanoon Mal Riyasat Gwalior, Samvat 1983
(hereinafter referred to as `Special Legislation').
factual matrix, there is no dispute between the parties. The subject matter of
appeal is land in question left behind by one Harbilas. Harbilas died in the
year 1948. Who out of the aforesaid two categories have the right of succession
to his land, is the question? The appellants fall in the category of
descendants of great grand father of Harbilas. Appellants are sons of Hansraj.
was father of Hansraj and Mohan was father of Murli.
was son of Bhagwant. Ghanshyam was father of Bhagwant. Murli and Ghanshyam were
brothers, both being sons of Mohan. Mohan was, thus, great grand father of Harbilas
as also of appellants. The other defendants in the suit also belong to
different branches of great grand father, Mohan. The respondents are Harbilas's
sister's sons. After the death of Harbilas, his sister's sons having failed
before the Revenue Courts in their claim for succession, filed the suit which
has given rise to this appeal, inter alia, seeking a declaration as owners of
the land left behind by Harbilas and for restoration of possession thereof from
the defendants being descendants of great grand father of Harbilas. The suit
for declaration and restoration of possession has been decreed by the trial
court. The judgment and decree of the trial court has been affirmed in the
first appeal as also by the High Court in the second appeal. Under these
circumstances, the defendants in the suit are in appeal before us.
only question is about the interpretation of part of Section 253 of the
aforesaid Special Legislation. At the time of death of Harbilas, his sister Kokila
was alive. The plaintiffs in the suit, namely, Pooja Ram and Mani Ram are sons
of Kokila. Smt. Kokila died after the death of Harbilas. All the defendants in
the suit, as stated above, belong to several branches of descendants of great
grand father of Harbilas. The controversy relates to interpretation of clause
(9) of Section 253 of the Special Legislation read with Appendix-3 appended
none of the claimants fall within clauses 1 to 8 of Section 253. Each of the
two categories of claimants claim to fall within clause (9). The Special
Legislation is in Hindi. Counsel for the parties admit that the correct English
translation of Section 253 and Appendix-3 appended thereto reads as under:-
"253. Right to Skitul Malkiyat tenants and Maurusi tenants is heritable
and order of succession to these tenants shall be as under:- (1) Natural
offspring seriatim i.e. first the son, then grand-son and in his absence great
Widow of deceased during her life time or so long as she does not remarry.
Son's widow, who lived jointly with deceased, during her life time or so long
as she does not marry.
of deceased if born of the same father as was the deceased.
blood relation, in the abovesaid serial order, as shown by way of illustration
in genealogical tree appendix-3, who are within three generations from father
or grand father, or great grand father." APPENDIX-3 Great grand mother (2)
(19) Great Grand father____ Widow ( ) | |(21) | | Grand mother (14) (13) Grand
father____ | Widow ( )|(16)Uncle | | |(17) |(22) Mother (6) (5) Father______
|Son |(23) Widow(15) |(9) | | |Bro-| |ther| | |Deceased|(4)Widow |(11)| | | |Nep-|
| | |hew | | | |(12)|(18)Son | | |Son | | | | | Widow (7) |(1)Son |(8)Daughter
| | |(2)Grandson |(10)Son | | | | |(3)Great Grandson It has been concurrently held
by all courts that the sister's son of the deceased fall in the category of the
`nearest blood relation' within the meaning of aforesaid clause (9) read with
the third Schedule and on that finding, the suit was decreed by the trial court
which judgment and decree has been affirmed in the first and second appeal.
counsel for the appellants contends that sister or sister's son have no right
to claim succession as neither sister nor sister's son are within the
contemplation of clause (9) of Section 253 of the Special Legislation.
said clause, it is contended, only recognises the male descendants who are
within three generations from father or grand father or great grand father. It
is claimed that the appellants fall in that category. In the order of
succession, the daughter of the deceased is in the sixth position. It may,
however, be noticed that in the section and in Appendix-3 as originally stood,
the daughter did not find any place. Section 253 of Special Legislation as
originally stood had only clauses 1 to 8. Daughter of deceased was brought in
by virtue of amendment of Samvat, year 1989 published in the Gwalior Government
Gazette dated 15th
April, 1943. By the
said amendment, `daughter of the deceased' was inserted below sons' widow as in
clause (5) and above the brother of the deceased as now in clause (7).
to amendment, clause (7) was clause (6). The High Court has held that the
amendment incorporating daughter of the deceased has a historical background
inasmuch as the ancient Hindu Law did not recognise the sister and sister's son
as heirs but Hindu Law of Inheritance (Amendment) Act, 1929 which came into
force on 21st February, 1929 made a far reaching departure from the ancient
rule by its Section 2 providing that a son's daughter, daughter's daughter,
sister and sister's son shall in the order so specified, be entitled to rank in
the order of succession next after father's father and before a father's
brother. The High Court observed that rule of succession enacted by Special Legislation
was also accordingly amended so as to get in tune with the march of time. The
amendment as aforestated that was incorporated in 1943 in Section 253 by adding
thereto in the order of succession daughter of deceased, may have been inspired
by amendment of Hindu Law made in 1929.
same time, however, it has to be kept in view, that no amendment was made
incorporating in Section 253 of the Special Legislation, the sister or sister's
son of the deceased. The amendment made in Hindu Law cannot be read into
Special Legislation. Section 253 of Special Legislation is a part of Revenue
Law of the erstwhile State of Gwalior. It enacts the list of heirs, who succeed
an ex-proprietary or an occupancy tenant. It applies to every such tenant
uniformly without reference to tenant's personal law. It would be equally
applicable to all irrespective of deceased tenant being a Muslim, Hindu,
Christian or any other religion. Under these circumstances, learned counsel for
the respondents rightly conceded that the Hindu Law of Inheritance (Amendment)
Act, 1929 cannot be read into Section 253 of the Special Legislation. The
contention of learned counsel for respondents, Mr. Khanduja, however, is that abovesaid
clause (9) on its own force covers the sister or sister's son who alone can be
said to be `nearest blood relation' within the meaning of the said clause. On
the other hand, the contention of Mr. Jain, learned counsel for the appellants
is that his clients fall within the meaning of `nearest close relation' as in clause
(9) which read with the appendix, nowhere mentions sister or sister's sons.
(9) of Section 253 does not only mention `nearest blood relation' as a last
category in the order of succession. The `nearest blood relation' has been
mentioned by way of illustration in genealogical tree, Appendix-3, who are
within three generations from father or grand father or great grand father. The
`nearest blood relations' are, therefore, circumscribed by the limitation of
three generations from father's side. The appellants are descendants of great
grand father of Harbilas, namely, Mohan. In Section 253, only daughter is
mentioned in one of category in order of succession. The sister or sister's
sons are nowhere mentioned. The sister or sister's son do not fall within three
generations from father or grand father or great grand father. It is not a case
of any close or nearest blood relations as such falling within the meaning of
clause (9). It is only those nearest blood relations who fall in clause (9) who
would come in order of succession. It appears that on marriage, sister goes out
of family and has thus not being shown in the family tree of the deceased. The
daughter was added in 1943 but not the sister or her sons. In the absence of
mention of sister or sister's son in clause (9) or Appendix-3, the question of
their being entitled to succession in preference over the descendants of the
great grand father does not arise. The descendants of great grand father
clearly fall within three generations as contemplated by Appendix-3. It is
nobody's case that prior to amendment of 1943, sister or sister's son were
included in clause (9) or in Appendix-3 but the daughter of deceased was not
included. Therefore, inclusion of daughter of the deceased in 1943 was
deliberate and by the same token the omission of sister or her sons was also
deliberate. If so, it is not possible to include them in the said provision now
by interpretation of clause (9) of Section 253 read with Appendix-3.
counsel for the respondents also sought to bring in the concept of stare decisis
and submitted that the interpretation sought to be placed on the aforesaid
provision by the High Court has stood the stand of time over number of years
and a different interpretation now would result in unsettling property rights
settled long ago. The said principle has no applicability in the present case.
No other decision of the High Court was brought to our notice placing the
similar interpretation on the provisions in question. The sister or sister's
son cannot be brought in order of succession by applying the principle of stare
decisis when they are clearly excluded. However, we make it clear that the
interpretation of clause (9) of Section 253 of Special Legislation placed by us
would not entitle anyone to reopen the issue of succession which stand already
settled. This interpretation would be applicable prospectively.
the aforesaid reasons, we allow the appeal and set aside the impugned judgment.
The suit of the plaintiffs stand dismissed. In the facts and circumstances of
the case, parties are left to bear their own costs.