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PETITIONER: ANNAGOUDA NATHGOUDA PATIL

       Vs.

RESPONDENT: COURT OF WARDS AND ANOTHER

DATE OF JUDGMENT: 17/12/1951

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN BOSE, VIVIAN

CITATION:  1952 AIR   60            1952 SCR  208  CITATOR INFO :  C          1970 SC 789  (13)  RF         1970 SC1643  (13)

ACT:     Hindu  Law--Inheritance--Succession to property  of  fe- male-Hindu  Law  of  Inheritance  (Amendment)  Act  (II   of 1929)--Applicability-Rights  of sister’s  sons--Property  of maiden--Order of succession.

HEADNOTE:     The Hindu Law of Inheritance (Amendment) Act (Act II  of 1929) which introduced the son’s daughter, daughter’s daugh- ter, sister and sister’s son between the grandfather and the paternal  uncle in the order of succession applies  only  to the  separate property of a Hindu male who  dies  intestate. It  does not alter the law as regards the devolution of  any other  kind of property owned by a Hindu male and  does  not purport  to regulate succession to the property of  a  Hindu female  at  all.   The Act cannot therefore  be  invoked  to determine  the  heirs of a Hindu female in  respect  of  her stridhan property.     The property of a Hindu female who dies as a maiden goes in  the  first place to her uterine brothers,  then  to  the mother and then to the father, and on failure of the  mother and  father,  it goes to the nearest relations, that  is  to say, to the sapindas of the father and in their default  the sapindas of the mother, both in the order of propinquity.     Under  the Mitakshara law of succession as well  as  the Mayukha law the paternal uncle’s son is entitled to  succeed to the property of a Hindu in preference to sister’s sons.     Manda  Mahalakshmamma  v. Mantravadi (I.L.R.  1947  Mad. 23),  Shakuntala  Bai v.  Court of Wards (I.L.R.  1942  Nag. 629),  Taluhraj  Kuar v. Bacha Kuar (I.L.R.  28  Pat.  150), Kuppuswami  v. Manickasari (A.I.R. 1950 Mad. 196)  approved. Shamrao  v. Raghunandan (I.L.R. 1939 Bom. 228), Mst.  Charjo v.  Dinanath  (A.I.R. 1937 Lah. 196), Kehar Singh  v.  Attar Singh  (A.I.R.  1944 Lah. 1142), Indra Pal v.  Humangi  Debi (I.L.R. 1949 All. 816) not approved.

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  115  of 1950.     Appeal from the  Judgment  and Decree of the Bombay High Court (Macklin and Rajadhyaksha JJ.) dated 14th March. 1945, in First Appeal No. 274 of 1941 which arose out of a  decree dated 15th March, 209 1941,  of  the First Class Subordinate Judge  of  Satara  in Civil Suit No. 890 of 1938. G.R. Madbhavi (K. R. Bergeri, with him) for their appellant. H.J. Umrigar for respondent No. 1. M.C. Setalvad, Attorney-General for India (K. G.Datar,  with him) for respondent No. 2.     1951. December 17.  The Judgment of the Court was deliv- ered by     MUKHERJEA J.--This appeal is directed against a judgment and  decree  of a Division Bench of the  Bombay  High  Court dated  the 14th of March, 1945, which affirmed,  on  appeal, the  decision of the First Class Subordinate Judge,  Satara, passed  in Civil Suit No 890 of 1938. The appellants  before us  filed the suit as plaintiffs in the original court,  for establishment  of  their title to the  property  in  dispute which  is known as Chikurde Estate, on the  allegation  that they  were,  under the Hindu Law, the nearest heirs  of  one Bhimabai, who was admittedly the last holder of the  estate. The suit was brought initially against one defendant,  name- ly, the Court of Wards, Satara, and admittedly the Court  of Wards took possession of the property of Bhimabai, while she was alive, and is continuing in possession of the same  even now  after her death. Later on, defendants 2, 3 and  4,  who put  forward rival claims of succession to the estate,  were allowed to intervene in the suit and were added as  parties- defendants. The Court of Wards, which now figures as defend- ant  No.  1, took up, all through, a  neutral  attitude  and expressed  its  willingness to hand over the estate  to  any person  who would be  declared to be rightfully entitled  to it by the Court.  The Courts below have negatived the claims of  defendants 2 and 3 and they have not come up  to  press. their claims in the appeal before us. The two rival   claim- ants,   who are now on the scene, are the plaintiffs on  one side and defendant No. 4 on the other, and the whole contro- versy in this appeal centres round the 210 point as to who amongst them have the preferential right  to succeed to the disputed estate after the death of  Bhimabai. To appreciate the material facts of the case and the conten- tions  that  have  been raised by the parties,  it  will  be convenient to refer to the following genealogy which is  not disputed by either side.                        Vithalrao (died 1896)                             --------- Ganpatrao (died 1914)       Nilkanthrao         Anandrao   Tangawa alias             (died 1899)        (died 1913) Anandibai (Deft. 2)                               Krishnabai Adopted Deft. 3                          Vithalrao (Deft. 4)   Babasaheb on                                    adopted by   3-2-1939.                                   Krishnabai on                                         4-11-1924 Respdt. 2. Firangojirao (died  Tanakka (predeceas-       angabai (died 15-11-1919.)        ed her sister Gangabai    on 14-2-1924)                         without any issue).       Nathgauda                          Annagauda       Balgauda (Plff. 2)

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Bhimabai (daughter)      (Plff. No. 1)      Appellant No. 2. (died on 27-1-1932).     Appellant No. 1     It is the case of both the parties that Vithalrao, whose name  appears at the top of the pedigree table, and who  was the  common  ancestor  of the  parties,  held  the  disputed property  as watan property appertaining to  the  hereditary office of Deshmukhi service. Vithalrao was the recipient  of a Sanad dated 28th November, 1892, under what was called the Gordon Settlement, the object of which was to commute  serv- ices  of certain watandars in that part of the  country  and relieve them from liability to perform the services attached to  their office on certain terms and conditions which  were agreed  upon between the Government on the one hand and  the watandars  on the other.  The terms of the  settlement  were generally embodied in Sanads and one such Sanad was  granted to  Vithalrao in 1892.  It is not disputed that  after  this settlement Vithalrao continued to be watandar as defined  by Bombay Act III of 1874, and that the watan in dispute was an impartible estate governed by the rule of 211 primogeniture.  In 1896 Vithalrao died and he was  succeeded by his eldest son Ganpatrao under the law of  primogeniture. Ganpatrao  died childless in 1914,  leaving behind  him  his two widows Anandibai and indirabai, of whom the senior widow Anandibais  defendant No. 2 in the present suit.   Both  the two  brothers  of Ganpatrao,  namely, Nilkanthrao and  Anan- drao  had predeceased him.  Nilkanthrao left behind him  one son  named Firangojirao and  two daughters,  while  Anandrao died childless, leaving him surviving his widow  Krishnabai, who  later on adopted Vithalrao, who is defendant No.  4  in the  suit.  Ganpatrao had left a will  bequeathing  all  his watan and nonwatan properties to Firangojirao and the latter succeeded to the estate both under the will as well as under the  law of  lineal  promogeniture, he  being  the only male member  of the family  at  that time. Firangojirao  died  in 1919,  leaving Bhimabai, his only daughter, who was a  minor at that time.  On 23rd September, 1921, the name of Bhimabai was  entered in the village records as watandar in place  of Firangojirao  and in the year following the Court of  Wards, Satara,  assumed  superintendence of Bhimabai’s  estate.  On 11th October, 1923, the Government of Bombay by their  Reso- lution  No.  A-471 declared the Chikurde Deshmukh  watan  as lapsed  to Government, presumably on the ground  that  there was  no  male heir in the watan family after  the  death  of Firangojirao.   A  new entry was then made  in  the  village register  which  recorded Bhimabai not as watandar,  but  as heir  of Firangojirao and the lands were described as  being converted into  ryotvari lands  after forfeiture by  Govern- ment  and subjected to full assessment. On 4th of  November, 1924,  Krishnabai, the widow of Anandrao, adopted  defendant No. 4 as a son to her husband. On 27th January, 1932, Bhima- bai  died unmarried and her estate continued under the  man- agement  of the Court of Wards.  The appellants  before  us, who are the sister’s sons of Firangojirao, brought this suit on  5th  of August, 1938, and their case, in  substance,  is that after the Resolution of the Government passed on 11th 212 of  October, 1923, the Chikurde estate ceased to be a  watan property and the succession to such estate was  governed  by the ordinary rules of Hindu Law and not by the provisions of Act  V of 1886 which postpone relations claiming  through  a female  to a male member of the watan family.  It was  urged that  the property being the absolute property  of  Bhimabai and  she having died while still a maiden,  the  plaintiffs, being  the  nearest heirs of her father,  were  entitled  to

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succeed  under the general rules of Hindu Law. As  said  al- ready, the defendant No. 4, who is respondent No. 2 in  this appeal,  was added as a party-defendant sometime  after  the suit  was filed and the contention raised on his behalf  was that by reason of his having been duly adopted. to  Anandrao on  4th  of November, 1924, he was the nearest heir  to  the property in suit which was a watan property and prayed  that a declaration in his favour might be made by the court.  The defendant No. 3 claimed to have been adopted as a son to her husband  Ganpatrao by Anandibai, the defendant No.  2,  some time in February 1939.     The trial court on a consideration of the evidence  came to the conclusion that the Chikurde estate was an impartible property  governed  by the rules of primogeniture.   It  was held that, it being an impartible joint estate, the rule  of survivorship still applied and consequently on the death  of Ganpatrao,  without  leaving any son, the estate  passed  by survivorship  to  the next senior branch which was  that  of Firangojirao.  The  view taken by the Subordinate  Judge  is that after Firangojirao’s death Bhimabai took only a  provi- sional  interest  in  the property which was  liable  to  be divested  by the emergence of a male member by  adoption  in the  family  and  in fact she was legally  divested  of  her interest in the property when defendant No. 4 was adopted by Anandrao’s  widow. In the opinion of the  Subordinate  Judge the  resolution  of  the Government  treating  the  Chikurde estate as lapsed was premature and could not be made legally so  long  as there were widows living, who were  capable  of adopting sonS.  The trial judge held further that even 213 if  Bhimabai  was taken to have held the property  as  watan till  her death, the next heir to succeed under  the  Bombay Act  V of 1886 would be defendant No. 4 and not  the  plain- tiffs.   The  result was that  the  plaintiffs’   suit   was dismissed.   The plaintiffs then took an appeal to the  High Court  of  Bombay and this appeal was heard  by  a  Division Bench  consisting  of Macklin in and  Rajadhyaksha  JJ.  The learned Judges dismissed the appeal and confirmed the  deci- sion  of the trial  court, though the reasons given by  them are not the same as those given by the trial judge.  It  was held  by  the  High Court, on a construction  of  the  Sanad granted  to  Vithalrao in 1892, that the order of  lapse  or forfeiture  of the watan estate passed by the Government  in the year 1923 on the ground of failure of male heirs was not a  valid  and legal order and although  under  the  relevant clause of the Sanad the Government could, in the absence  of male  heirs, resume the watan in the sense that  they  could make  the  property  liable to full  assessment,  the  other incidents of the watan estate still continued. Consequently, Act V of 1886 would still govern succession to such property and defendant No. 4 had preferential rights over the  plain- tiffs  under  section  2 of that Act.  It  is  against  this decision that the plaintiffs have come up on appeal to  this court.     The  learned Counsel appearing on behalf of  the  plain- tiffs-appellants has raised a two-fold contention in support of the appeal. It has been contended in the first place that the  High  Court was in error in holding that  the  Chikurde estate  retained its watan character even after it  was  re- sumed  by the Government by its Resolution of 11th  October, 1923;  and  if  it was non-watan, the  plaintiffs  would  be nearer  heirs to Bhimabai than defendant No. 4.   The  other contention  raised  is that even if  the  property  remained watan in the hands of Bhimabai, the latter would have to  be regarded  as  a watandar in the true sense of the  word  and

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would  be a fresh stock of descent. In that view the  plain- tiffs would come within the family of 28 214 watandar  as  defined in Bombay Act V of 1886,  whereas  the defendant No. 4 would be outside the family.    The points undoubtedly are interesting, but having regard to  the view which we have decided to take, it would not  be necessary  to investigate the merits of either of them.   It may be pointed out that the learned Judges of the High Court proceeded  throughout on the assumption that the  plaintiffs would have preferential rights of succession if the property was  regarded as non-watan in the hands of Bhimabai.  It  is only  if the property was watan that the Bombay Act of  1886 will  apply and the plaintiffs, who were  descended  through females, would be postponed to defendant No. 4 who by  adop- tion  became  a male member of the  family.   Mr.  Setalvad, appearing  for  defendant No. 4 who is respondent No.  2  in this  appeal,  contended before us that this  assumption  is wrong, and that even if the property was regarded as  nonwa- tan  property  and belonging absolutely to Bhimabai  as  her stridhan, still as heir of Bhimabai’s absolute property  the defendant  No. 4 would  have higher rights than  the  plain- tiffs.  As this point was not touched upon in the  judgments of either of the courts below, we heard the learned  Counsel on  both  sides at great length upon it and  the  conclusion that  we have reached is that the contention of the  learned AttorneyGeneral is well-founded and must prevail.      For  the purpose of this argument we would assume  that the   property  in suit was non-watan stridhan  property  of Bhimabai   and the  only question is, as to who amongst  the rival  claimants  would be the nearer heir after  her  death according to the Hindu Law of inheritance ?  It is  admitted that  Bhimabai died while she was a maiden and that a  maid- en’s property  under   the  Hindu  Law  goes  in  the  first place  to  her uterine brothers, in default of them  to  the mother  and  then to the father.  This is according  to  the text of Baudhayana (1)which is accepted by all the commenta- tors. Viramitrodaya adds to this that "on failure of  mother and father it goes to their (1) See Mitakshara, Chap. II, sec. XI, para 30. 215 nearest relations"(1). It has been held in a large number of cases that the expression "nearest relations of the parents" means  and  refers to the sapindas of then,  father  and  in their  default  the sapindas of the mother both in order  of propinquity(2).   In the case c before us, both  the  plain- tiffs and defendant No. 4 are sapindas of Firangojirao,  the plaintiffs  being the sister’s sons of  Firangojirao,  while the  latter is  his  paternal  uncle’s son.  It is not  dis- puted that  apart  from the changes introduced by the  Hindu Law  of Inheritance (Amendment) Act, (Act II of  1929),  the place of the paternal uncle’s son in the line of heirs under the Mitakshara Law of Succession is much higher than that of the sister’s son and the Mayukha Law, which prevails in  the State  of Bombay, does not make any difference in  this  re- spect.  Under the Mitakshara Law, the paternal  uncle  comes just after the paternal grandfather and his son follows  him immediately.   By Act II of 1929, however, four other  rela- tions  have been introduced between the grandfather and  the paternal  uncle and they are the son’s daughter,  daughter’s daughter,  sister and sister’s son, and the  paternal  uncle and  his son are thus postponed to these four  relations  by the Hindu Law of Inheritance Act of 1929.  The question  is, whether the provisions of this Act can at all be invoked  to

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determine  the  heirs of a Hindu female in  respect  of  her stridhan  property.  The object of the Act as stated in  the preamble  is to alter the order in which certain heirs of  a Hindu  male dying intestate are entitled to succeed  to  his estate; and section 1 (2) expressly lays down that "the  Act applies only to persons who but for the passing of this  Act would have been subject to the Law of Mitakshara in  respect of  the  provisions herein enacted, and it applies  to  such persons in respect only of the property of males not held in coparcenary and not disposed of by will".  Thus the scope of the  Act  is  limited.  It governs succession  only  to  the separate  property of a Hindu male who dies  intestate.   It does (1) See Viramitrodaya, Chap. V, Part II, Sec. 9. (2) See Mayne’s Hindu Law, 11th edition, Art. 621, page 741. 216 not  alter  the law as regards the devolution of  any  other kind of property owned by a Hindu male and  does not purport to regulate succession to the property of a Hindu female  at all.   It  is to be noted that the Act does not  make  these four  relations  statutory heirs under  the  Mitakshara  Law under  all circumstances and for all purposes;it makes  them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his  separate property.   Whether this distinction between male and female propositus is at all reasonable  is  another matter, but the language of the Act makes this distinction expressly and  so long  as  the language is clear and  unambiguous,  no  other consideration is at all relevant. This is the view which has been taken, and in our opinion quite rightly, in a number of cases  of the Madras, Patna and Nagput High  Courts(1).   We are not unmindful of the fact that a contrary view has  been expressed  in  certain decisions of the Bombay,  Lahore  and Allahabad  High Courts (2).  The line of reasoning  that  is adopted in most of the decisions where the contrary view  is taken  can  be thus stated in the language  of  Mr.  Justice Somjee (3):__     "The  Act is not sought to be applied to  determine  the succession  to the stridhan of a Hindu maiden but is  sought to  be used by the petitioner to ascertain the fourth  class of heirs to the stridhan of a Hindu maiden mentioned at page 139  of Mulla’s Hindu Law......  The heirs of the father  at the  time of her death have to be ascertained in  accordance with the Hindu Law as it existed at the time of the death of Bai Champubai. Thus the Act comes into operation for  ascer- taining the order in which the heirs of her father would  be entitled to succeed to his estate, because the heirs of  the father     (1) Vide Manda Mahalakshmamma v. Mantravadi (I.L.R. 1947 Mad. 23); Shakuntalabai v. Court of Wards (I.L.R. 1942  Nag. 629);  Talukraj  Kuer v. Bacha Kuer (I.L.R.  26  Pat.  150); Kuppuswami v Manickasari (A.I.R. 1950 Mad. 196).     (2) Shamrao v. Raghunandan (I.L.R. 1939 Bom. 228);  Mst. Charjo  v. Dinanath (A.I.R. 1937 Lah. 196);  Kehar Singh  v. Attar  Singh  (A.I.R. 1944 Lah. 442); Indra Pal  v.  Humangi Debi (I.L.R. 1949 All. 816). (3)  Vide  Shamrao v. Raghunandan (I.L.R. 1939 Bom.  228  at 230). 217 in the order of propinquity who would be entitled to succeed to  him if he died on August 3, 1937, would be the heirs  of Bai  Champubai  in the absence of the uterine  brother,  the mother and the father."     It  is true that we have got to ascertain who the  heirs of  the father are at the date when the daughter  dies,  but

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the  enquiry is for the purpose of finding out who the  suc- cessor  to  the estate of the daughter is.  This  being  the subject  of the enquiry, the operation of Act II of 1029  is excluded  by its express terms and for that purpose the  Act is  to  be  treated as non-existent.  In  other  words,  the stridhan  heirs are to be ascertained with reference to  the general provisions of the Hindu Law of Inheritance  ignoring the  statutory  heirs who have been introduced by  the  Act. The  fallacy in the line of approach adopted in these  cases seems  to be that they treat the Inheritance Act of 1929  as amending or altering the Mitakshara Law of succession in all cases  and for all purposes, whereas the Act has  absolutely no  operation when succession to the separate property of  a male is not the subject-matter of investigation.  The result is  that in our opinion the plaintiffs are not  the  nearest heirs  of Bhimabai even assuming that the property was  non- watan and belonged to her absolutely.  The appeal will  thus stand dismissed. We make no order as to costs in this appeal except that defendant No. 1, the Court of Wards, would  have its costs as between attorney and client out of the  estate. The order for costs made by the courts below will stand.                                    Appeal dismissed. Agent for the appellant: M.S.K. Sastri. Agent for respondent No. 1: P.A. Mehta. Agent for respondent No. 2: K.J Kale. 218