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PETITIONER: PYARE LAL & ORS

       Vs.

RESPONDENT: MANI RAM & ORS.

DATE OF JUDGMENT:       22/08/2000

BENCH: A.P.Misra, Y.K.Sabharwal

JUDGMENT:

     Y.K.SABHARWAL, J.

     The  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’).

     On  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. Murli  was father of Hansraj and Mohan was father of  Murli. Harbilas  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.

     The  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

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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   thereto. Admittedly, 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 grand son.

     (2)  Widow of deceased during her life time or so long as she does not remarry.

     (3) father of deceased.

     (4) mother of deceased.

     (5)  Son’s  widow,  who lived jointly  with  deceased, during her life time or so long as she does not marry.

     (6) daughter of deceased.

     (7)  brother of deceased if born of the same father as was the deceased.

     (8) daughter’s son.

     (9)  nearest  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.

     Learned  counsel  for  the  appellants  contends  that sister  or sister’s son have no right to claim succession as

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neither sister nor sister’s son are within the contemplation of  clause  (9) of Section 253 of the  Special  Legislation. The  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). Prior  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. At  the 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.

     Clause  (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

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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.

     Learned  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.

     For 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.