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

2. The material facts of this case are few. For a proper understanding of the facts of the case, it will be convenient to have before us the admitted pedigree of the family. It is as follows:-3. The finding of the trial Court that the suit properties are the stridhana properties of Barji was not contested before the High Court. In this Court at one stage a feeble attempt was made on behalf of the appellants to contest that finding. We did not permit that finding to be challenged as the same had not been challenged before the High Court. Therefore we proceed on the basis of that finding. Barji died in September 1950. Her husband Patu Ram had predeceased her. It appears he died sometime in 1904. Patu Rams father Bool Chand as well as Patu Rams brothers Tulsi Ram, Behari Lal and Hira Lal had predeceased Barji. Patu Ram and Barji had a son by name Jugal Kishore who had predeceased Patu Ram leaving behind him his widow Bindri who died in 1931. They had no children. Radha Kishan, the adopted son of Patu Ram and Barji died about 20 years before the death of Barji leaving behind him his widow, defendant No. 6. Radha Kishan had five children including defendants Nos. 1 to 3 through another wife. His son Roshanlal had died a few months before the death of Barji. His daughter Balwanti had predeceased Barji leaving behind her children defendants 4 and 5. Tulsi Rams son Prahlad Rai had also predeceased Barji leaving behind his widow defendant No. 8 and son defendant No. 7. By the time succession to the estate of Barji opened all the children of Behari Lal and Hiralal had died but some of them had children and grandchildren as seen from the pedigree. After the death of Barji, her properties came to the possession of defendant No. 6. Defendant No. 1 sued for the possession of those properties on the ground that she and her sisters are preferential heirs to the deceased Barji. To that suit she did not make Amar Nath, the plaintiff in the present suit, a party. Amar Naths application for being impleaded as a party in that suit was opposed by the 1st defendant and the said application was ultimately rejected by the Court. The dispute in that suit was referred to arbitration. The arbitrators upheld the claim of defendants Nos. 1 to 3. Thereafter the present suit was brought. In the High Court as well as in the trial Court there was a triangular contest. The plaintiff claimed that he was exclusively entitled to the suit properties, defendants Nos. 1 to 3 claimed that they are the nearest heirs to Barji; some of the other defendants contended that they succeeded to the suit properties as co-tenants with the plaintiff. In this Court all the contesting defendants sail together. As mentioned earlier, the trial Court accepted the claim of defendants Nos. 1 to 3 but the High Court held that the plaintiff was exclusively entitled to the suit properties, he being the nearest heir to the deceased. That finding is contested both by defendants Nos. 1 to 3 as well as by the other contesting defendants. That is how the aforementioned two appeals came to be filed.4. In arriving at its finding the High Court relied on the rules of succession found in paragraph 147 of Mullas Principles of Hindu Law (13th Edn.). It came to the conclusion that those rules are exhaustive. On the basis of those rules, it ruled that defendants Nos. 1 to 3 were not entitled to succeed to the estate of Barji. So far as the other defendants are concerned it rejected their claim on the ground that as between the plaintiff and themselves the former is a preferential heir as he is the nearest in degree to Barji.

Reasoning:
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.