ivil Appeal Nos 851  4125 of 1991
From the Judgment and Order dated 15121982 of the Punjab  Haryana High Court in RSA No 754 of 1974
UR Lalit MR Sharma AS Sohal GK Bansal Anil Nauriya KL Hathi Ms Anjna Sharma NA Siddiqui and Mrs Hemantika Wahi for the appearing parties
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  the 
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  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 SLP 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 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 mode of succession has been prescribed under Section 15 of the 
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 
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 vs Gopikabai and anr
 There this Court observed that the rule under which the property of the intestate would devolve is regulated by Rule 3 of Section 16 of the 
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 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 151
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 
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  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
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 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 SV 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
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 2b 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
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
GN CA No 85191 dismissed and CA No 412591 allowed


Summary:
Early one morning the five appellants Tej Singh armed with a spear his son Mizaji armed with a pistol which he carried in the folds of his dhoti his nephew Subedar his cousin Machal and his servant Maiku armed with lathis went to take forcible possession of a field which was in the cultivatory possession of Rameshwar and others
While Tej Singh stood guard Maiku started ploughing and overturning the jowar that had been sown in one portion of the field and the others started cutting the sugarcane which stood in another portion
When Rameshwar and others arrived they protested to Tej Singh whereupon all the accused gathered near Tej Singh and asked the complainants to go away otherwise they would be finished
On their refusal to go Tej Singh asked Mizaji to fire at them and Mizaji shot Rameshwar dead
The Courts below found that the common object of the unlawful assembly was to take forcible possession of the field and to meet every eventuality even to the extent of causing death if interfered with
It accordingly convicted the appellants under section 302 read with section 149 Indian Penal Code and sentenced Mizaji to death and the others to imprisonment for life
The appellants contended that the other appellants could not have the knowledge that Mizaji carried a pistol in the folds 941 of his dhoti that the murder was not committed in prosecution of the common object to take forcible possession nor did the other appellants know that murder was likely to be committed in furtherance of the common object
Held that the appellants had been rightly convicted and sentenced under section 302 read with section 149 Indian Penal Code
The extent to which the members of the unlawful assembly were prepared to go in prosecution of the common object is indicated by the weapons carried by them and their conduct
The circumstances show that the appellants must have known that Mizaji was carrying a pistol
The appellants were prepared to take forcible possession at any cost and the murder was immediately connected with the common object
Under the first part Of section I49 the offence committed in prosecution of the common object must be one which was committed with a view to accomplish the common object and must be connected immediately with the common object of the unlawful assembly of which the accused were members
Even if the offence committed was not in direct prosecution of the common object of the assembly it would yet fall under section I49 if it could be shown that the offence was such as the members knew was likely to be committed
The expression know  does not mean a mere possibility such as might or might not happen
Queen vs Sabid Ali Cr Chikkarange Gowde vs State of Mysore AIR 1956 SC 731 referred to
The fact that the appellants went to take possession in the absence of the complainants did not show that the common object was not to take forcible possession as proceedings were going on between the parties in the Revenue Court for possession over the field and the appellants had gone armed with lethal weapons prepared to overcome the opposition which they knew they would meet
Mizaji was rightly given the sentence of death
He shared the common object of the unlawful assembly and carried the pistol from his house to use it in prosecution of the object and did use it
The fact that he used the pistol at the instance of his father was not a mitigating circumstance