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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: BALWANT SINGH & ORS.

DATE OF JUDGMENT09/10/1991

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SAWANT, P.B.

CITATION:  1992 AIR 2214            1991 SCR  (3) 928  1991 SCC  (4) 368        1991 SCALE  (2)557

ACT: Hindu Succession Act, 1956:      Section  15(1)  and (2)--Hindu female  dying  intestate leaving  behind property derived from her  husband---Devolu- tion  of-Object of sub-section (2)(h)--Not to eliminate  the other  heirs under sub-section (1) and not to  exclude  them from inheritance altogether.         Section  29   Property escheated  to  Government  on failure  of  heirs--Only  when there  is  total  absence  of heirs---Availability of heirs under sub) section (1) or  (2) of Section 15--Whether precludes escheat.

HEADNOTE:      One  Smt. ’M’ inherited from her husband certain  agri- cultural lands. Some of the lands were under mortgage and in the  possession  of defendants 2 to 6.  She  died  intestate after  the  Hindu Succession Act, 1956 came into  force.  As there  was  no  heir entitled to succeed  to  her  property, mutation was sanctioned in favour of the State. The grandson of  her brother claiming to be her legal heir filed  a  suit for possession of the property and for a declaration that he was  entitled to redeem the mortgaged property from  defend- ants  2 to 6.’The suit was resisted by the First  Defendant, viz. the State on the ground that the intestate had left  no heir  to succeed and the mutation effected in favour of  the State was valid. Defendants 2 to 6 contended that the  right to  redeem  the  mortgage had extinguished,  and  they  have become the owners of the property as they were in possession for more than sixty years.      The  Trial  Court dismissed the suit holding  that  the plaintiff was not entitled to succeed to the property of the deceased since the property was inherited from her  husband. As  regards  the mortgage, it was left open  to  be  decided later as agreed to by the parties.      Plaintiff  preferred an appeal and the  District  Judge dismissed the same. On a second appeal preferred by him, the High Court decreed the 459 suit  for  possession even against defendants 2  to  6.  The State  as well as the defendants 2 to 6 have  preferred  the present appeals by special leave.     The  appellant-State  contended that  the  plaintiff-Re-

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spondent was not a qualified heir under the Hindu Succession Act and hence it was a case of failure of heirs resulting in the devolution of estate on the Government. The other appel- lants  (Defendants  2 to 6) contended that  the  High  Court ought  not  have  decreed the suit against  them  since  the plaintiff-Respondent’s right to redeem the mortgage was  not adjudged  by the trial court and by agreement  the  question was expressly left open.     Dismissing the appeal preferred by the State and  allow- ing the appeal of defendants 2 to 6, this Court,     HELD:  1.  The property is escheated to  the  Government when  an intestate has left no heir qualified to succeed  to his  or  her  property. The property shall  devolve  on  the Government  and the Government shall take the property  sub- ject to all the obligations and liabilities of the property. It  is only in the event of the deceased leaving  behind  no heir  to succeed, the State steps in to take  the  property. The State does not take the property as a rival or preferen- tial  heir of the deceased but as the Lord paramount of  the whole soil of the country. [464 B,C]     2.  Section 29 of the Hindu Succession Act,  1956  shall not  operate  in favour of the State if there is  any  other heir  of the intestate. Indeed, Section 29 itself  indicates that  there  must be failure of heirs.  ’Failure’  of  heirs means the total absence of heirs to the intestate. A  female Hindu  being the full owner of the property becomes a  fresh stock of descend. If she leaves behind any heir either under sub-section (1) or under sub-section (2) of Section 15,  her property cannot be escheated. [464 E,F] Halsbury’s  Laws  of England, 4th Edn. Vol.  17  para  1439; referred to.     3.1.  Sub-Section  (2) of Section 15, intended  only  to change  the order of succession specified under  sub-section (1) and not to eliminate the other classes of heirs. Section 15(2) came to be incorporated on the recommendations of  the Joint Committee of the two Houses of Parliament. The  report of  the  Joint Committee which was  accepted  by  Parliament indicates  that this sub-section was intended to revise  the order of succession among the heirs to a Hindu female and to prevent  the properties from passing into the hands to  per- sons to whom justice would 460 demand  that they should not pass. That means  the  property should go in the first instance to the heirs of the  husband or to the source from where it came. [464 F, H, 465 C]     3.2.  Sub-section (2)(b) of Section 15  emphasises  that the  property  of the intestate shall not devolve  upon  the heirs referred to in sub-section (1) in the order  specified thereunder but upon heirs of the husband. The object is  not to  eliminate the other heirs under sub-sectiOn (1) and  not to  exclude  them from inheritance altogether. There  is  no justice in such a construction of Section 15. The Parliament could not have intended that result. [465 F-G.] Bhajya v. Gopikabai and Anr, [1978] 3 SCR 561, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos.  851  & 4125 of 1991.     From  the  Judgment and Order dated  15.12.1982  of  the Punjab & Haryana High Court in R.S.A. No. 754 of 1974.     U.R.  Lalit, M.R. Sharma, A.S. Sohal, G.K. Bansal,  Anil Nauriya,  K.L.  Hathi, Ms. Anjna Sharma, N.A.  Siddiqui  and Mrs. Hemantika Wahi for the appearing parties.

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The Judgment of the Court was delivered by     K.  JAGANNATHA SHETTY, J. These are  defendants’  appeal and special leave petition arising out of a suit for posses- sion  brought by Balwant Singh - the plaintiff. In the  Spe- cial  Leave Petition, we condone the delay and grant  leave. The  suit was dismissed by the Court of first  instance  and the  dismissal was affirmed by the appellate court  but  de- creed by the High Court in the second appeal.      The  issue  raised  in the appeal  is  of  considerable importance and it relates to the construction of Section  15 of  the  Hindu Succession Act, 1956 (’the  Act’).  One  Smt. Mahan Kaur, wife of Jaimal Singh inherited from her  husband certain  agricultural  land measuring 110 kanals  12  marlas situate  in village Hamhal, Jakhe-Pal in  Sangrur  District. Some of the lands were under mortgage and are in  possession of  defendants 2 to 6. After coming into force of  the  Act, Mahan Kaur died intestate. On being informed that there  was no  heir  entitled to succeed to her property,  the  Revenue Assistant  Collector  sanctioned mutation in favour  of  the State.  Balwant Singh claiming to be a legal heir  of  Mahan Kaur brought the suit out of which the present appeal arise. The suit was for possession of the 461 property  of the deceased and also for a declaration  decree that  he was entitled to redeem the mortgaged property  from defendants 2 to 6. The suit was resisted by the State on the ground that the intestate has left behind no heir to succeed and the mutation effected in favour of the State was  valid. Defendants  2  to 6 contended that the right to  redeem  the mortgage  has  been extinguished and they  have  become  the owners of the property by being in possession for more  than sixty years.    The trial court held that the plaintiff was not  entitled to succeed to the property of the deceased since the proper- ty  was  inherited from her husband. The issue  relating  to subsistance or otherwise of the mortgage was left open to be decided  later as agreed upon by counsel for both  the  par- ties. The suit was accordingly dismissed by the trial court. The  plaintiffs appeal against the decree was  dismissed  by the District Judge, Sangrur. The second appeal preferred  by the plaintiff was, however, accepted by the High Court.  The High Court decreed the suit for possession even against  de- fendants 2 to 6. That part of the decree has been challenged by  defendants 2 to 6 in S.L.P. (Civil) No. 13923  of  1985. Their  grievance  is that the High Court ought not  to  have decreed the suit against them since the plaintiff’s right to redeem  the mortgage was not adjudicated by the trial  court and by agreement, the question was expressly left open.  The submission  of the defendants 2 to 6 appears to  be  correct and the decree against them made by the High Court is plain- ly untenable. There is indeed no controversy on that  aspect of the matter.          L    It  is not in dispute that Mahan Kaur inherited the  suit property  from  her husband. She had no issue and  she  died intestate.  It is also not in dispute that there is no  heir from her husband side entitled to succeed to  the  property. The  plaintiff  is grandson of the brother  of  Mahan  Kaur. According  to him he is entitled to get the property of  the deceased. The case of the State is that the plaintiff is not her qualified heir under the Act and it is a case of failure of  heirs resulting in the devolution of the estate  on  the Government.     The  issue  raised  in the case turns on  the  rules  of succession  to a property of a female dying  intestate.  The

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mode  of succession has been prescribed under Section 15  of the  Act.  Section 15 has to be read alongwith  Section  16. They  in  turn have to be read alongwith the  provisions  of Section  8. The property devolving upon the State  has  been provided under Section 29 of the Act. Section 15 is important and it may be read in full: 462     "15.  General rules of succession in the case of  female Hindus-  (1) 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  pre-deceased               son or daughter) and the husband;               (b) secondly, upon the heirs of the husband;               (c) thirdly, upon the mother and father;               (d)  fourthly, upon the heirs of  the  father;               and               (e) lastly upon the heirs of the mother.               (2)  Notwithstanding  anything  contained   in               sub-section (1) -               (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 subsection (1)  in  the               order specified therein, but upon the heirs of               the father; and               (b)  any property inherited by a female  Hindu               from  her  husband or from  her  father-in-law               shall  devolve, in the absence of any  son  or               daughter of the deceased (including the  chil-               dren of any pre-deceased son or daughter)  not               upon  the other heirs referred to in  sub-sec-               tion  (1) in the order specified therein,  but               upon the heirs of the husband."     Sub-section  (1)  of Section 15 groups the  heirs  of  a female intestate into five categories and they are specified under clauses (a) to (e). As per Sections 16 Rule 1 those in one  clause  shall be preferred to those in  the  succeeding clauses  and  those included in the same clause  shall  take simultaneously. Sub- section (2) of Section 15 begins with a non-obstante  clause providing that the order of  succession is not that prescribed under sub-section (1) of Section  15. It carves out two exceptions to the general order of succes- sion  provided  under sub-section (1). The  first  exception relates to the property inherited by a female Hindu from her father  or mother. That property shall devolve, in  the  ab- sence of any son or daughter of the deceased (including  the children of the pre-deceased son or daughter), not upon  the other  heirs  referred to in sub-section (1)  in  the  order specified 463 therein, but upon the heirs of the father. The second excep- tion  is in relation to the property inherited by  a  female Hindu  from  her  husband or from  her  father-in-law.  That property shall devolve, in the absence of any son or  daugh- ter  of  the deceased (including the children  of  the  pre- deceased son or daughter) not upon the other heirs  referred to  under sub-section (1) in the order specified  thereunder but upon the heirs of the husband.     The  process of identifying the heirs of  the  intestate under  sub-section (2) of Section 15 has been  explained  in Bhajya  v. Gopikabai and anr. [1978] 3 SCR 561.  There  this Court observed that the rule under which the property of the

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intestate would devolve is regulated by Rule 3 of Section 16 of the Act. Rule 3 of Section 16 provides that "the  devolu- tion of the property of the intestate on the heirs  referred to  in  clauses (b), (d) and (e) of sub-section (1)  and  in sub-section (2) of Section 15 shall be in the same order and according  to  the same rules as would have applied  if  the property  had been the father’s or the mother’s or the  hus- band’s  as the case may be, and such person had died  intes- tate  in respect thereof immediately after  the  intestate’s death".  This  rule  creates a fiction for  the  purpose  of ascertaining  the order of devolution. It has to be  assumed that  the husband had died intestate immediately  after  the female intestate’s death. Bearing in mind this fiction,  one has to go to the Schedule under Section 8 of the Act to find out the heirs of the husband who are entitled to succeed  to the property of the intestate.     The High Court has stated that the property inherited by Mahan Kaur from her husband became her absolute property  in view of the provisions of Section 14 and the property  would devolve upon the heirs specified under Section 15(1). It has also  observed that the plaintiff would be entitled to  suc- ceed  to the estate of Mahan Kaur even under Section 15  (2) being  an heir of her father under Entry (d) of  sub-section (1)  of  Section 15 of the Act. In our opinion,  both  these reasons are basically faulty and cannot be accepted.     Counsel  for the State argued that the property  of  the intestate has to be dealt with only under sub-section (2) of Section 15, and since there is no heir in that category  the property shall devolve on the Government under Section 29.               "Section 29 provides as follows:               "ESCHEAT               464               "Failure of heirs- If an intestate has no heir               qualified to succeed to his or her property in               accordance  with the provisions of  this  Act,               such property shall devolve on the Government:               and  the  Government shall take  the  property               subject to all the obligations and liabilities               to which an heir would have been subject."     The  property  is escheated to the  Government  when  an intestate  has left no heir qualified to succeed to  his  or her  property. The property shall devolve on the  Government and  the Government shall take the property subject  to  all the obligations and liabilities of the property. It is  only in  the  event  of the deceased leaving behind  no  heir  to succeed, the State steps in take the property.     The  State  does  not take the property as  a  rival  or preferential heir of the deceased but as the Lord  paramount of  the  whole soil of the country. In Halsburry’s  Laws  of England, 4th ed. Vol. 17 para 1439 it is stated as follows:               "To whom land escheated - Escheat in the  case               of  death  intestate before 1926  was  to  the               mesne lord is he could be found but, as  since               1290  sub-infeudation has been  forbidden,  in               the  great  majority  of cases  there  was  no               record  of the mesne tenure, and  the  escheat               was to the Crown as the lord paramount of  the               whole soil of the country."     Section 29, in our opinion, shall not operate in  favour of  the State if there is any other heir of  the  intestate. Indeed,  Section  29  itself indicates that  there  must  be failure of heirs. ’Failure’ of heirs means the total absence of heirs to the intestate. It is important to remember  that female Hindu being the full owner of the property becomes  a fresh stock of descend. If she leaves behind any heir either

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under  sub-section (1) or under sub-section (2)  of  Section 15, her property cannot be escheated.     Sub-section  (2)  of  Section 15, in  our  opinion,  was intended  only to change the order of  succession  specified under sub-section (1) and not to eliminate the other classes of  heirs. This view finds support from the  recommendations of  the  Joint Committee of two Houses of  Parliament  which went  into  the question of the Hindu Succession  Bill.  The Hindu  Succession Bill 1954 as originally introduced in  the Rajya  Sabha  did not contain any  clause  corresponding  to sub-section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of  Parliament. The reason given by the Joint  Committee  is found in Clause 17 of the Bill which reads as follows: 465                    "While  revising the order of  succession               among the heirs to a  Hindu female, the  Joint               Committee have provided that properties inher-               ited  by  her from her father reverts  to  the               family of the  father in the absence of  issue               and  similarly  property inherited   from  her               husband or father-in-law reverts to the  heirs               of  the  husband in the absence of  issue.  In               the  opinion  of the Joint  Committee  such  a               provision  would  prevent  properties  passing               into  the  hands of persons  to  whom  justice               would demand they should not pass."     The report of the Joint Committee which was accepted  by Parliament indicates that sub-section (2) of section 15  was intended  to revise the order of succession among the  heirs to a Hindu female and to prevent the properties from passing into the hands of persons to whom justice would demand  that they  should not pass. That means the property should go  in the  first  instance to the heirs of the husband or  to  the source from where it came.     In  support  of the contrary submission,  attention  was drawn to a passage from Hindu Law by S.V. Gupte in which  it is stated "that the heirs of the husband will take where the property was inherited from the husband or from the  father- in-law. The object is to eliminate the father and the  moth- er,  the  heirs of the father, and the heirs of  the  mother altogether from succession where the property inherited  was from  the husband or the father-in-law and the deceased  has left no son or daughter or any grandchild. The effect of the clause  is  not only to eliminate the three classes  of  the heirs, being those mentioned in clauses (c), (d) and (e)  to subsection  (1),  but to change the  order  of  succession." (1981  Ed. Vol. 2 p. 522). We however, find it difficult  to share this view.’ It does not get support from the terms  of sub-section (2) of Section 15. Sub-section (2)(b) emphasises that  the property of the intestate shall not  devolve  upon the heirs referred to in sub-section (1) in the order speci- fied  thereunder but upon heirs of the husband. The,  object seems  to  be not to eliminate the other  heirs  under  sub- section  (1) and not to exclude them from inheritance  alto- gether.  There is no justice in such a construction of  Sec- tion 15. The Parliament could not have intended that result.     In this view of the matter, we dismiss the Civil  Appeal No.  851  of  1991 preferred by the State but  not  for  the reasons stated by the High Court. We allow the appeal  aris- ing out of SLP (Civil) No. 13923 of 1985 466 and  set aside that portion of the decree made by  the  High Court  as against the defendants 2 to 6. The suit  filed  by the plaintiff as against defendants 2 to 6 stands dismissed.

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The  parties  may adjudicate elsewhere  the  subsistence  or otherwise of the mortgage in question. In the circumstances of the case, there will be no order  as to costs. G.N.                         CA No. 851/91 dismissed and                              CA No. 4125/91 allowed. 467