Case: Sham Lal &amp; Ors. Etc Vs. Amar Nath &amp; Ors

of succession to stridhana propinquity was considered by the law-givers as the sole or even the principal test, otherwise there is no justification for a daughters daughter or a daughters son to succeed to the estate of a woman in preference to her son. It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in socio-religious matters, particularly when our social laws were controlled by our religious beliefs and our law-givers were our religious preceptors. It is for the Legislatures to step in and bring about harmony between the society and the laws governing it. That is why our Parliament enacted several statutes in 1955 to amend the Hindu Law in various respects.11. We are unable to accept the contention of Mr. Bishan Narain that the expression sons son includes sons daughters as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughters daughter succeeds to the stridhana in preference to daughters son. The order of succession prescribed clearly rules out the application of that rule of interpretation.12. Mr. Sen in support of his contention that on a true interpretation of the relevant passages in Mitakshara, defendants Nos. 1 to 3 are preferential heirs to deceased Barji, relied on certain passages in some of the decided cases. First he referred to the decision of the Patna High Court in Raghava Surendra Sahi v. Babul Lachmi Kuer, ILR 18 Pat 590 = (AIR 1939 Pat 636 ). Therein the dispute related to the succession to the properties left by a maiden and not by a married woman. The rules relating to the succession to the stridhana of a deceased maiden are wholly different from those relating to succession to the stridhana of a married woman. Therefore, the observations made in regard to those rules have no relevance for our present purpose. He next invited our attention to certain passages in the decision of the Judicial Committee in Bai Kesserbai v. Hunsraj Morarji, (1906) 33 Ind App 176 (PC). Therein the dispute was between Bai Kesserbai the surviving co-widow of the deceased Bachubais husband Koreji haridass, Hunsraj Morarji the separated nephew of Koreji, being the son of his eldest brother, who predeceased Bachubai and Bai Moghibai, the widow of a younger brother of Koreji named Ranchordass Haridass. The question for consideration by the Judicial Committee was as to the true scope of the latter part of the plactia 9 in Colebrookes Mitakshara which says"if a woman die without issue, that is leaving no progeny.. the womans property...shall be taken by her kinsmen, namely her husband and the rest as will be forthwith explained".Their Lordships observed that there can be no reasonable doubt that according to Mitakshara definition of sapinda, husband and wife are sapindas to each other and the co-widow of the husband of the deceased was the nearest sapinda of the deceased womans husband hence entitled to succeed to the estate in question. This decision again does not bear on the point under consideration.13. Lastly, Mr. Sen contended that in view of the Hindu Womens Rights to Property Act (XVIII of 1937), it must be held that defendants 1 to 3 are nearer heirs to the deceased than the plaintiff. This contention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda v. Court of Wards, (1952) 3 SCR 208 = (AIR 1952 SC 60), wherein this Court dealing with Act II of 1929, observed:"The question is whether the provisions of this Act can at all be invoked to 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 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."Similar would be the position under the Hindu Womens Rights to Property Act, 1937. Section 3 (1) of that Act which provides for the devolution of the property reads thus:"When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property his widow or if there is more than one widow all his widows together shall, subject to the provisions of sub-sec. (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son..."14. From this provision it is clear that Hindu Womens Rights to Property Act, 1937, applies only to the separate property left by a Hindu male. It does not apply either to the coparcenary property or to the property of a Hindu female.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. It is the admitted case of the parties that the properties in question are not shukla and that Barji was married in one of the approved forms. Therefore, while pronouncing on the competing claims made in this case, we must be guided by the order of succession prescribed in paragraph 147, if the same is correct andlegal position is stated in identical terms in Maynes Treatise on Hindu Law (11th Edn.- Paragraph 623, pp. 744 to 746) as well as in the other text-books on Hindu Law referred to at the time of the hearing. At this stage it may be mentioned that the correctness of the order of succession mentioned in paragraph 147 till we come to item No. 7 (sons son) was not challenged. The same is well settled by decided cases. It is not necessary to refer to those cases. The only contention advanced on behalf of some of the defendants is that after sons sons come sons daughters. Alternatively it was contended that the expression "sons son" includes "sons daughter". We have to see whether these contentions are well founded.These passages have received interpretation at the hands of the Judicial Committee as well as the High Courts in India and the law is now settled as to the mode of succession to stridhana under Mitakshara until we reach sons son. The controversy now is as to whoshould succeed to such an estate if none of the heirs mentioned in items Nos. 1 to 7 in paragraph 147 of Mullas Hindu Law are in existence at the time of the death of the womanparties did not place before us either an admitted translation of the original text or even an official translation. Colebrooke is a distinguished oriental scholar. The Judicial Committee as well as the various High Courts in this country have relied on his translation of Mitakshara in dealing with the question of inheritance. Jogendra Nath Bhattacharya in his commentary on Hindu Law (2nd Edn.) deals with the order of succession under Mitakshara to stridhana in Chapter VI of that book. His translation of the relevant commentaries accords with those made by Colebrooke. To the same effect is the opinion expressed by Justice Chandavarkar in Bhimacharya v. Ramcharya, (1909) ILR 33 Bomcontention is opposed to the commentaries by Narada, Gautama and the later commentators. More than that it runs counter to the decisions rendered by the Judicial Committee and the various High Courts during the last over a century.It is now settled that stridhana of a Hindu woman governed by Mitakshara passes in the order mentioned in Mitakshara and the children of the deceased woman do not take the same as a body either jointly or as tenants-in-common. Only the heirs belonging to a class take the properties asdo not think that in the matter of succession to stridhana propinquity was considered by the law-givers as the sole or even the principal test, otherwise there is no justification for a daughters daughter or a daughters son to succeed to the estate of a woman in preference to her son. It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in socio-religious matters, particularly when our social laws were controlled by our religious beliefs and our law-givers were our religious preceptors.We are unable to accept the contention of Mr. Bishan Narain that the expression sons son includes sons daughters as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughters daughter succeeds to the stridhana in preference to daughters son. The order of succession prescribed clearly rules out the application of that rule ofcontention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda v. Court of Wards, (1952) 3 SCR 208 = (AIR 1952 SCFrom this provision it is clear that Hindu Womens Rights to Property Act, 1937, applies only to the separate property left by a Hindu male. It does not apply either to the coparcenary property or to the property of a Hinduwe are unable to agree with Mr. Sen that Colebrookes translation does not bring out accurately the meaning of the relevant passages to Mitakshara.