Case: ARUNACHALA GOUNDER (DEAD) BY LRS Vs. PONNUSAMY AND ORS


Decision reasoning: 1[ds]14. Insofar as, the date of death of Marappa Gounder being 15.04.1949, it is a finding of fact affirmed by the two fact-finding Courts based on appreciation of material evidence existing on the record of the case and is not liable to be interfered with and we proceed to decide the issue between the parties taking the date of death of Marappa Gounder as 15.04.1949.It is correct that neither any issue was framed by Trial Court in this regard nor any evidence was led by the parties nor any finding has been returned. However, in view of the admission made by the defendant in para 3 of the written statement that suit properties are absolute properties of Marappa Gounder, he having purchased the same in a Court auction sale on 19.09.1938, there was hardly any necessity to frame any issue in this regard, once the fact was admitted in written statement.17. Furthermore, the defendants themselves have nowhere pleaded that purchase of suit property was made by Marappa Gounder out of the joint family funds. There is a clear admission in the written statement that property in question was the absolute property of Marappa Gounder, he having purchased the same in the Court auction sale.17.1 In view of above facts, the arguments advanced by learned counsel for the respondent, in this regard, has no force and not liable to be accepted.25. The commentary also refers to a case of Pranjivandas Tulsidas Vs. Dev Kuvarbai, 1 Bomb. H.C., B. 131, wherein a Hindu owning separate property died without a male issue, leaving behind – a widow, four daughter and a brother and male issues of other deceased brothers. The Court observed that the widow was entitled to a life estate in the property and subject to her interest the property would devolve to the daughters absolutely in preference to the brother and the issue of the deceased brothers.26. References to this case have also been made in numerous reported as well as unreported cases; as in the case of Tuljaram Morarji vs. Mathuradas, Bhagvandas, and Pranjivandas ILR (1881) 5  Bom 662, it was observed that :-…The decision in that case and that in Pranjivandas vs. Devkuvarbai have been steadily followed by the High Court in numerous unreported cases, and by the legal profession…. Any departure now from those decisions would cause much confusion and injustice throughout this Presidency, and no advantage that we can perceive. We, therefore, must abide by the principles which they clearly indicate.51. Privy Council has delivered some notable judgments on the issue arising for adjudication in the case at hands. Reference may be made to the case of Katama Natchiar Vs. Srimut Rajah Mootoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Taver (1863) 9 MIA 539. The dispute in the appeal before the Privy Council was in respect of the Right of Inheritance of Shivagunga Zamindary, situate in the District Maduaa, Presidency of Madras. The Privy Council after noticing the facts of the long litigation and the three suits filed between the parties, which were dismissed by the Provincial Court and the appeal was filed in each of the three suits which were heard together and disposed of by the decree of the Sudder Court. The Privy Council noted the following arguments advanced before it, by Anga Moottoo Natchiar, as under :-She submitted as in issue of fact that the Zamindar had been acquired by the sole exertions and merits of her husband; and as an issue of law that what is acquired by a man, without employment of his patrimony, shall not be inherited by her brothers and co-heirs, but if he dies without male issue, shall descend to his widows, his daughters and the parents, before going to her brothers or remoter collaterals.52. After analysing the factual aspects in details, the Privy Council posed three questions as under :-The substantial contest between the appellant and the respondent is, as it was between Anga Mootoo Natchiar and the respondents predecessors, whether the Zamindary ought to have descended in the male and collateral line; and the determination of this issue depends on the answers to be given to one or more of the following questions :(i) Were Gowery Vallabha Taver and his brother, Oya Taver, undivided in estate, or had a partition taken place between them?(ii) If they were undivided, was the zemindary the self- acquired and separate property or Gowery Vallabha Taver? and if so-(iii) What is the course of succession according to the Hindoo Law of the South of India of such an acquisition, where the family is in other respects an undivided family?53. Insofar as, the first question is concerned, the Privy Council did not disturb the findings in the decree of 1847 that Gowery Vallabha Taver and his brother, after the acquisition by the former of the zemindary, lived very much as if they were separate. The second question was answered in affirmative. With respect to the third question, the Privy Council observed as under :-The third question is one of nicety and of some difficulty. The conclusion which the Courts in India have arrived at upon it, is founded upon the opinion of the Pundits, and upon authorities referred to by them. We shall presently examine those opinions and authorities; but before doing so, it will be well to consider more fully the law of inheritance as it prevails at Madras and throughout the southern parts of India, and the principles on in these parts of India is to be found in the Mitacshara, and in ch.II., sec. 1, of that work the right of windows to inherit in default of male issue is fully considered and discussed.The Mitacshara purports to be a commentary upon the earlier institutes of Yajnyawalcya; and the section in question begins by citing a text from that work, which. Affirms in general terms the right of the window to inherit on the failure of male issue. But then the author of the Mitacshara refers to various authorities which are apparently in conflict with the doctrines of Yajnyawalcya, and, after reviewing those authoritesi, seeks to re3concile them by coming to the conclusion that a wedded wife, being chaste, takes the whole estate of a man, who, being separated from his co- heirs, and not subsequently re-united with them, dies leaving no male issue, This text, it is true, taken by itself, does not carry the rights of widows to inherit beyond the cases in which their husbands have died in a state of separation from their co-heirs, and leaving no male issue; but it is to be observed that the text is propounded as a qualification of the larger and more general proposition in favour of widows; and, consequently, that in construing it, we have to consider what are the limits of the qualification, rather than what are the limits of the right. Now, the very terms of the text refer to eases in which the whole estate of the deceased has been his separate property, and, indeed, the whole chapter in which the text is contained, seems to deal only with cases in which the property in question has been either wholly the common property of a united family, or wholly the separate property of the deceased husband We find no trace in it of a case like that before us, in which the property in question may have been in part the common property of a unit4ed family, and in part the separate acquisition of the deceased; and it cannot, we think, be assumed that because widows take the whole estates of their husbands when they have been separated from, and not subsequently re-united with, their co-heirs, and have died leaving n™ male issue, they cannot, when their husbands have not been so separated, take any part of their estates, although it may have been their husbands separate acquisition. The text, therefore, does not seem to us to govern this case.There being then no positive text governing the case before us, we must look to the principles of the law to guide us in determining it. It is to be observed, in the first place, that the general course of descent of separate property according to the Hindoo law is no disputed. It is admitted that, according to that law, such property descends to windows in default of male issue. It is upon the Respondent, therefore, to make out that the property here in question, which was separately acquired, does not descend according to the general course of the law. The way in which this is attempted to be done, is by showing a general state of co- parcenaryship as to the family property; but assuming this to have been proved, or to be presumable from there being no disproof of the normal state of co- parcenaryship, this proof, or absence of proof, cannot alter the case, unless it be also the law that there cannot be property belonging to a member of a united Hindoo family, which descends in a course different from that of the descent of a. share of the property held in union; but such a proposition is new, unsupported by authority, and at variance with principle. Thai two courses of descent may obtain on a part division of join property, is apparent from a passage in W.H. Macnaghtens Hindu Law, title Partition, vol. I. p. 53, where it is said as follows: According to the more correct opinion, where there is an undivided residue, it is not subject to the ordinary rules of partition of join property; in other words, if at a general partition any part of the pro-perty was left joint, the widow of a deceased brother will not participate, notwithstanding the separation, but such undivided residue will go exclusively to the brother.Again, it is not pretended that on the death of the acquirer. of separate property, the separately acquired property falls into the common stock, and passes like ancestral property. On the contrary, it is admitted that if the acquirer leaves male issue, it will descend as separate property to that issue down to the third generation. Although, therefore, where there is male issue, the family property and the separate property would not descend to different persons, they would descend in a different way, and. with different con- sequences; the sons taking their fathers share in the ancestral property subject to all the rights of the co- parceners in that property, and his self-acquired property free from those rights. The course of succession would not be the same for the family and the separate estate; and it is clear, therefore, that, according to the Hindoo law, there need not be unity of laeirship.But to look more closely into the Hindoo law. When property belonging in common to a united Hindoo family has been divided, the divided shares go in the general course of descent of separate property. Why, it may well be asked, should not the same rule apply to property which from its first acquisition has always been separate We have seen from the passage already quoted from Macnaghtens Hindu Law, that where a residue is left un-divided upon partition, what is divided goes as separate property; what is undivided follows the family property; that which remains as it was, devolves in the old line; that which is changed and becomes separate, devolves in the new line. In other words, the law of succession follows the nature of the property and of the interest in it.Again, there are principles on which the rule of succession according to the Hindoo law appears to depend: the first is that which determines the right to offer the funeral oblation, and the degree in which the person making the offering is supposed to minister to the spiritual benefit of the deceased; the other is an assumed right of survivorship. Most of the authorities rest the uncontested right of widows to inherit the estates of their husbands, dying separated from their kindred, on the first of these principles (1 Stranges Hindu Law, p. 135). But some ancient authorities also invoke the other principle.Again, the theory which would restrict the preference of the co-parceners over the windows to partible property is not only, as is shown above, founded upon an intelligible principle, but reconciles the law of inheritance with the law of partition. These laws, as is observed by Sir Thomas Strange, are so intimately connected that they may almost be said to be blended together; and it is surely not consistent with this position that co-parceners should take separate property by descent, when they take no interest in it upon partition. We may further observe, that the view which we have thus indicated, of the Hindoo law is not only, as we have shown, most consistent with its principles, but is also most consistent with convenience.54. On a complete reading of the judgment of Privy Council in extenso, the following legal principles are culled out:-A) That the General Course of descends of separate property according to the Hindu Law is not disputed it is admitted that according to that law such property (separate property) descends to widow in default of male issue.B) It is upon Respondent therefore to make out that the property herein question which was separately acquired does not descends according to the general Course of Law.C) According to the more correct opinion where there is undivided residue, it is not subject to ordinary rules of partition of joint property, in other words if it a general partition any part of the property was left joint the widow of the deceased brother will not participate notwithstanding with separation but such undivided residue will go exclusively to brother.D) The law of succession follows the nature of property and of the interest in it.E) The law of partition shows that as to the separately acquired property of one member of a united family, the other members of the family have neither community of interest nor unity of possession.F) The foundation therefore of a right to take such property by survivorship fails and there are no grounds for postponing the widows right any superior right of the co-parcenars in the undivided property.G) The Hindu Law is not only consistence with this principle but is also most consistent with convenience.55. Another case of the Privy Council is Sivagnana Tevar and Anr. Vs. Periasami & Ors. 1878 (1) ILR Madras 312. The aforesaid case, before the Privy Council was in continuity and of the consequence of the previous case Katama Natchiar (Supra) but of a different branch of the family. In the said case, it was observed as under :-Their Lordships then have come to the conclusion that, as between the descendants of Muttu Vaduga and Dhorai Pandian, the palayapat was the separate property of the latter; that on the death of Dhorai Pandian, his right, if he had any left undisposed of in the property, passed to his widow, notwithstanding the undivided status of the family; and that therefore, the case was one to which the rule of succession affirmed in the Shivagunga case (Supra) applies.56. The principles of law which can be deduced from reading of the aforesaid judgment can be summarized as under:-The law laid down in the case of Katama Natchiar Vs. Srimut Rajah Mootoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Taver, that succession in the case of Hindu male dying intestate is to be governed by inheritance rather than survivorship, is reaffirmed.In the absence of male member, the property devolves upon widow and thereafter to daughter.57. A Full Bench of Allahabad High Court, in the case of Ghurpatari & Ors. Vs. Smt. Sampati & Ors. AIR 1976 ALL 195 , while considering the question whether a custom under which daughters are excluded from inheriting the property of their father can by implication exclude the daughters issues both males and females, also from such inheritance, made the following observations in respect of Right of Inheritance of a widow or a daughter of a male Hindu dying intestate :-17. The rules relating to inheritance by widow and daughter were enunciated in the ancient past by various sages and were ultimately elaborated by Vijnyaneshwara in Mitakshara. We may quote from Colebrookes translation.Katyayan said let the widow succeed to her husbands wealth, provided she be chaste; and in default of her let the daughter inherit if married. Brihaspati Said, the wife is pronounced successor to the wealth of her husband; and in her default the daughter; as a son so does the daughter of a man proceed from his several limbs, how then shall any other person take the fathers wealth? Vishnu laid down, if a man leaves neither son, nor sons son, nor wife, nor female issue, the daughters son shall take his wealth, for in regard to the obsequies of ancestors, daughters son is considered as sons son. Manu likewise declared that by a male child, who were daughter whether formally appointed or not, shall produce from a husband of an equal class, the maternal grandfather becomes the grand sire of sons son, let that son give the funeral oblation and possess the inheritance. The right of daughter and daughters son to succeed to the property was thus well recognized in the Mitakshara Law. The daughter ranks fifth in the order of succession and the daughters son ranked sixth.58. Thereafter, the Court proceeded to consider the question of custom prevalent in a particular sect and whether they will have the sources of law with which we are not concerned in the case at hands.62. Reference may also be made to the decision of Bombay High Court in Devidas & Ors. Vs. Vithabai & Anr. 2008 (5) Mh.L.J. 296. In the said case, one Arujna died in 1936, when succession opened and while determining the shares during partition daughter of one pre-deceased sons of Arjuna namely, Vithabai was held entitled for a share. The name of Vithabai was removed from revenue record. She filed a suit for declaration claiming 1/3rd share with other reliefs. Trial Court dismissed the suit. The First Appellate Court held that plaintiff, Vithabai, being daughter of Zolu was a Class-I heir and thus, was entitled to 1/3rd share and accordingly, reversed the decree. The matter was carried in second appeal. The High Court while reversing the decree of Lower Appellate Court and confirming that of the Trial Court observed as under :-12. Zolu, when died in 1935 was joint with his father and brothers. Therefore, his share in the coparcenery would devolve by survivorship and not by succession. Zolu did not hold any separate property admittedly and therefore, there was no question of property passing over by succession. The following illustration to Section 24 in Mullas Hindu Law 19th Edition shall be enough to unfortunately negative the claim of the plaintiff. The case is squarely covered by this illustration.(1) A and B two Hindu brothers, governed by the Mitakshara School of Hindu Law, are members of a joint and undivided family. A dies leaving his brother B and a daughter. As share in the joint family property will pass to his brother, the surviving coparcener, and not to his daughter. However, if A and B were separate, As property would on his death pass to his daughter as his heir.The plaintiff due to the above proposition of law was not entitled to succeed to the estate of her father. The persons on whom the share of Zolu devolved were his brothers and father by survivorship. The share could not devolve on the daughter by succession since the plaintiff herself pleads that the property was joint and there was no partition. It was, therefore, not a separate estate of Zolu so that rule of succession could be applied. The property therefore passed over by survivorship in favour of brothers and father who were coparceners.64. From the above discussions, it is clear that ancient text as also the Smritis, the Commentaries written by various renowned learned persons and even judicial pronouncements have recognized the rights of several female heirs, the wives and the daughters being the foremost of them.65. The rights of women in the family to maintenance were in every case very substantial rights and on whole, it would seem that some of the commentators erred in drawing adverse inferences from the vague references to womens succession in the earlier Smritis. The views of the Mitakshara on the matter are unmistakable. Vijneshwara also nowhere endorses the view that women are incompetent to inherit.66. Right of a widow or daughter to inherit the self-acquired property or share received in partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements and thus, our answer to the question Nos. 1 and 2 are as under :-If a property of a male Hindu dying intestate is a self- acquired property or obtained in partition of a co-parcenery or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a maleHindu would be entitled to inherit such property in preference to other collaterals.67. In the case at hands, since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.68. Insofar as, question no. 3 is concerned under the old customary Hindu Law, there are contradictory opinions in respect of the order of succession to be followed after the death of such a daughter inheriting the property from his father. One school is of the view that such a daughter inherits a limited estate like a widow, and after her death would revert back to the heirs of the deceased male who would be entitled to inherit by survivorship. While other school of thought holds the opposite view. This conflict of opinion may not be relevant in the present case inasmuch as since Kupayee Ammal, daughter of Marappa Gounder, after inheriting the suit property upon the death of Marappa Gounder, died after enforcement of Hindu Succession Act, 1956 (hereinafter referred to as The Act of 1956), which has amended and codified the Hindu Law relating to intestate succession among Hindus. The main scheme of this Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to womens property. The Act lays down a uniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies to every person, who is a Hindu by religion in any of its forms including a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or Arya Samaj and even to any person who is Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by religion.75. This Court while analysing the provisions of Sections 15 & 16 of the Act in the case of State of Punjab Vs. Balwant Singh & Ors. 1992 Supp. (3) SCC 108,  has held as under:-7. 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 absence 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 therein, but upon the heirs of the father. The second exception 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 daughter 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.8. 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 intestate would devolve is regulated by Rule 3 of Section 16 of the Act. Rule 3 of Section 16 provides that the devolution 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 fathers or the mothers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death.76. Again in the case of Bhagat Ram (dead) by LRs. Vs. Teja Singh (dead) by LRs. (2002) 1 SCC 210,  a two-Judge Bench of this Court analysing the provisions of Sections 14, 15 and 16 of the Act reiterating the view taken in the State of Punjab Vs. Balwant Singh & Ors.(Supra), observed as under :-The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of sub-Section 2 of Section 15, which gives a special pattern of succession.77. Applying the above settled legal proposition to the facts of the case at hands, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounders daughters being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.78. Unfortunately, neither the Trial Court nor the High Court adverted itself to the settled legal propositions which are squarely applicable in the facts and circumstances of the case.