http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SMT. KASTURI DEVI

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION & ORS.

DATE OF JUDGMENT04/11/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA CHANDRACHUD, Y.V. GOSWAMI, P.K.

CITATION:  1976 AIR 2595            1977 SCR  (2)  25  1976 SCC  (4) 674

ACT:             Hindu Succession Act, 1956--Whether remarriage would bar         a mother from succeeding as son’s heir.

HEADNOTE:             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.  116                       followed.

JUDGMENT:                       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

       a  pure question of law regarding inheritance to the proper-         ty 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  revi-         sional 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 remar-         ried  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 Madhua.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

           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)  ob-         served 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 unchas-         tity 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 remarried.             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  investiga-         tion,  we  do not propose to remand the case to  the    High         Court.             For these reasons, therefore, the appeal is allowed, the         orders of the High Court and the Deputy Director of Consoli-         dation  are    set aside, and the order  of  the  Settlement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

       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.         28