dedol-hf/india-case-legal-rag huggingface dataset:
any  costs  which may be necessitated by a further  enquiry,
they will be determined according to the final result of the
litigation and with due regard to all matters bearing on the
question of costs.
    FAZL ALI J.--I agree.
                                   Case remanded.
Agent  for the appellant: M.S.K. Sastri.
Agent for the respondent: Ganpat Rai.
PETITIONER:
ANNAGOUDA NATHGOUDA PATIL
        Vs.
RESPONDENT:
COURT OF WARDS AND ANOTHER
DATE OF JUDGMENT:
17/12/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
SASTRI, M. PATANJALI (CJ)
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
 1952 AIR   60            1952 SCR  208
 CITATOR INFO :
 C          1970 SC 789  (13)
 RF         1970 SC1643  (13)
ACT:
    Hindu  Law--Inheritance--Succession to property  of  fe-
male-Hindu  Law  of  Inheritance  (Amendment)  Act  (II   of
1929)--Applicability-Rights  of sister's  sons--Property  of
maiden--Order of succession.
HEADNOTE:
    The Hindu Law of Inheritance (Amendment) Act (Act II  of
1929) which introduced the son's daughter, daughter's daugh-
ter, sister and sister's son between the grandfather and the
paternal  uncle in the order of succession applies  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.   The Act cannot therefore  be  invoked  to
determine  the  heirs of a Hindu female in  respect  of  her
stridhan property.
    The property of a Hindu female who dies as a maiden goes
in  the  first place to her uterine brothers,  then  to  the
mother and then to the father, and on failure of the  mother
and  father,  it goes to the nearest relations, that  is  to
say, to the sapindas of the father and in their default  the
sapindas of the mother, both in the order of propinquity.
    Under  the Mitakshara law of succession as well  as  the
Mayukha law the paternal uncle's son is entitled to  succeed
to the property of a Hindu in preference to sister's sons.
    Manda  Mahalakshmamma  v. Mantravadi (I.L.R.  1947  Mad.
23),  Shakuntala  Bai v.  Court of Wards (I.L.R.  1942  Nag.
629),  Taluhraj  Kuar v. Bacha Kuar (I.L.R.  28  Pat.  150),
Kuppuswami  v. Manickasari (A.I.R. 1950 Mad. 196)  approved.
Shamrao  v. Raghunandan (I.L.R. 1939 Bom. 228), Mst.  Charjo
v.  Dinanath  (A.I.R. 1937 Lah. 196), Kehar Singh  v.  Attar
Singh  (A.I.R.  1944 Lah. 1142), Indra Pal v.  Humangi  Debi
(I.L.R. 1949 All. 816) not approved.
JUDGMENT:
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  115  of
1950.
    Appeal from the  Judgment  and Decree of the Bombay High
Court (Macklin and Rajadhyaksha JJ.) dated 14th March. 1945,
in First Appeal No. 274 of 1941 which arose out of a  decree
dated 15th March,
209
1941,  of  the First Class Subordinate Judge  of  Satara  in
Civil Suit No. 890 of 1938.
G.R. Madbhavi (K. R. Bergeri, with him) for their
appellant.
H.J. Umrigar for respondent No. 1.
M.C. Setalvad, Attorney-General for India (K. G.Datar,  with
him) for respondent No. 2.
    1951. December 17.  The Judgment of the Court was deliv-
ered by
    MUKHERJEA J.--This appeal is directed against a judgment
and  decree  of a Division Bench of the  Bombay  High  Court
dated  the 14th of March, 1945, which affirmed,  on  appeal,
the  decision of the First Class Subordinate Judge,  Satara,
passed  in Civil Suit No 890 of 1938. The appellants  before
us  filed the suit as plaintiffs in the original court,  for
establishment  of  their title to the  property  in  dispute
which  is known as Chikurde Estate, on the  allegation  that
they  were,  under the Hindu Law, the nearest heirs  of  one
Bhimabai, who was admittedly the last holder of the  estate.
The suit was brought initially against one defendant,  name-
ly, the Court of Wards, Satara, and admittedly the Court  of
Wards took possession of the property of Bhimabai, while she
was alive, and is continuing in possession of the same  even
now  after her death. Later on, defendants 2, 3 and  4,  who
put  forward rival claims of succession to the estate,  were
allowed to intervene in the suit and were added as  parties-
defendants. The Court of Wards, which now figures as defend-
ant  No.  1, took up, all through, a  neutral  attitude  and
expressed  its  willingness to hand over the estate  to  any
person  who would be  declared to be rightfully entitled  to
it by the Court.  The Courts below have negatived the claims
of  defendants 2 and 3 and they have not come up  to  press.
their claims in the appeal before us. The two rival   claim-
ants,   who are now on the scene, are the plaintiffs on  one
side and defendant No. 4 on the other, and the whole contro-
versy in this appeal centres round the
210
point as to who amongst them have the preferential right  to
succeed to the disputed estate after the death of  Bhimabai.
To appreciate the material facts of the case and the conten-
tions  that  have  been raised by the parties,  it  will  be
convenient to refer to the following genealogy which is  not
disputed by either side.
                       Vithalrao (died 1896)
                            ---------
Ganpatrao (died 1914)       Nilkanthrao         Anandrao
  Tangawa alias             (died 1899)        (died 1913)
Anandibai (Deft. 2)                               Krishnabai
Adopted Deft. 3                          Vithalrao (Deft. 4)
  Babasaheb on                                    adopted by
  3-2-1939.                                   Krishnabai on
                                        4-11-1924 Respdt. 2.
Firangojirao (died  Tanakka (predeceas-       angabai (died
15-11-1919.)        ed her sister Gangabai    on 14-2-1924)
                        without any issue).       Nathgauda
                         Annagauda       Balgauda (Plff. 2)
Bhimabai (daughter)      (Plff. No. 1)      Appellant No. 2.
(died on 27-1-1932).     Appellant No. 1
    It is the case of both the parties that Vithalrao, whose
name  appears at the top of the pedigree table, and who  was
the  common  ancestor  of the  parties,  held  the  disputed
property  as watan property appertaining to  the  hereditary
office of Deshmukhi service. Vithalrao was the recipient  of
a Sanad dated 28th November, 1892, under what was called the
Gordon Settlement, the object of which was to commute  serv-
ices  of certain watandars in that part of the  country  and
relieve them from liability to perform the services attached
to  their office on certain terms and conditions which  were
agreed  upon between the Government on the one hand and  the
watandars  on the other.  The terms of the  settlement  were
generally embodied in Sanads and one such Sanad was  granted
to  Vithalrao in 1892.  It is not disputed that  after  this
settlement Vithalrao continued to be watandar as defined  by
Bombay Act III of 1874, and that the watan in dispute was an
impartible estate governed by the rule of
211
primogeniture.  In 1896 Vithalrao died and he was  succeeded
by his eldest son Ganpatrao under the law of  primogeniture.
Ganpatrao  died childless in 1914,  leaving behind  him  his
two widows Anandibai and indirabai, of whom the senior widow
Anandibais  defendant No. 2 in the present suit.   Both  the
two  brothers  of Ganpatrao,  namely, Nilkanthrao and  Anan-
drao  had predeceased him.  Nilkanthrao left behind him  one
son  named Firangojirao and  two daughters,  while  Anandrao
died childless, leaving him surviving his widow  Krishnabai,
who  later on adopted Vithalrao, who is defendant No.  4  in
the  suit.  Ganpatrao had left a will  bequeathing  all  his
watan and nonwatan properties to Firangojirao and the latter
succeeded to the estate both under the will as well as under
the  law of  lineal  promogeniture, he  being  the only male
member  of the family  at  that time. Firangojirao  died  in
1919,  leaving Bhimabai, his only daughter, who was a  minor
at that time.  On 23rd September, 1921, the name of Bhimabai
was  entered in the village records as watandar in place  of
Firangojirao  and in the year following the Court of  Wards,
Satara,  assumed  superintendence of Bhimabai's  estate.  On
11th October, 1923, the Government of Bombay by their  Reso-
lution  No.  A-471 declared the Chikurde Deshmukh  watan  as
lapsed  to Government, presumably on the ground  that  there
was  no  male heir in the watan family after  the  death  of
Firangojirao.   A  new entry was then made  in  the  village
register  which  recorded Bhimabai not as watandar,  but  as
heir  of Firangojirao and the lands were described as  being
converted into  ryotvari lands  after forfeiture by  Govern-
ment  and subjected to full assessment. On 4th of  November,
1924,  Krishnabai, the widow of Anandrao, adopted  defendant
No. 4 as a son to her husband. On 27th January, 1932, Bhima-
bai  died unmarried and her estate continued under the  man-
agement  of the Court of Wards.  The appellants  before  us,
who are the sister's sons of Firangojirao, brought this suit
on  5th  of August, 1938, and their case, in  substance,  is
that after the Resolution of the Government passed on 11th
212
of  October, 1923, the Chikurde estate ceased to be a  watan
property and the succession to such estate was  governed  by
the ordinary rules of Hindu Law and not by the provisions of
Act  V of 1886 which postpone relations claiming  through  a
female  to a male member of the watan family.  It was  urged
that  the property being the absolute property  of  Bhimabai
and  she having died while still a maiden,  the  plaintiffs,
being  the  nearest heirs of her father,  were  entitled  to
succeed  under the general rules of Hindu Law. As  said  al-
ready, the defendant No. 4, who is respondent No. 2 in  this
appeal,  was added as a party-defendant sometime  after  the
suit  was filed and the contention raised on his behalf  was
that by reason of his having been duly adopted. to  Anandrao
on  4th  of November, 1924, he was the nearest heir  to  the
property in suit which was a watan property and prayed  that
a declaration in his favour might be made by the court.  The
defendant No. 3 claimed to have been adopted as a son to her
husband  Ganpatrao by Anandibai, the defendant No.  2,  some
time in February 1939.
    The trial court on a consideration of the evidence  came
to the conclusion that the Chikurde estate was an impartible
property  governed  by the rules of primogeniture.   It  was
held that, it being an impartible joint estate, the rule  of
survivorship still applied and consequently on the death  of
Ganpatrao,  without  leaving any son, the estate  passed  by
survivorship  to  the next senior branch which was  that  of
Firangojirao.  The  view taken by the Subordinate  Judge  is
that after Firangojirao's death Bhimabai took only a  provi-
sional  interest  in  the property which was  liable  to  be
divested  by the emergence of a male member by  adoption  in
the  family  and  in fact she was legally  divested  of  her
interest in the property when defendant No. 4 was adopted by
Anandrao's  widow. In the opinion of the  Subordinate  Judge
the  resolution  of  the Government  treating  the  Chikurde
estate as lapsed was premature and could not be made legally
so  long  as there were widows living, who were  capable  of
adopting sonS.  The trial judge held further that even
213
if  Bhimabai  was taken to have held the property  as  watan
till  her death, the next heir to succeed under  the  Bombay
Act  V of 1886 would be defendant No. 4 and not  the  plain-
tiffs.   The  result was that  the  plaintiffs'   suit   was
dismissed.   The plaintiffs then took an appeal to the  High
Court  of  Bombay and this appeal was heard  by  a  Division
Bench  consisting  of Macklin in and  Rajadhyaksha  JJ.  The
learned Judges dismissed the appeal and confirmed the  deci-
sion  of the trial  court, though the reasons given by  them
are not the same as those given by the trial judge.  It  was
held  by  the  High Court, on a construction  of  the  Sanad
granted  to  Vithalrao in 1892, that the order of  lapse  or
forfeiture  of the watan estate passed by the Government  in
the year 1923 on the ground of failure of male heirs was not
a  valid  and legal order and although  under  the  relevant
clause of the Sanad the Government could, in the absence  of
male  heirs, resume the watan in the sense that  they  could
make  the  property  liable to full  assessment,  the  other
incidents of the watan estate still continued. Consequently,
Act V of 1886 would still govern succession to such property
and defendant No. 4 had preferential rights over the  plain-
tiffs  under  section  2 of that Act.  It  is  against  this
decision that the plaintiffs have come up on appeal to  this
court.
    The  learned Counsel appearing on behalf of  the  plain-
tiffs-appellants has raised a two-fold contention in support
of the appeal. It has been contended in the first place that
the  High  Court was in error in holding that  the  Chikurde
estate  retained its watan character even after it  was  re-
sumed  by the Government by its Resolution of 11th  October,
1923;  and  if  it was non-watan, the  plaintiffs  would  be
nearer  heirs to Bhimabai than defendant No. 4.   The  other
contention  raised  is that even if  the  property  remained
watan in the hands of Bhimabai, the latter would have to  be
regarded  as  a watandar in the true sense of the  word  and
would  be a fresh stock of descent. In that view the  plain-
tiffs would come within the family of
28
214
watandar  as  defined in Bombay Act V of 1886,  whereas  the
defendant No. 4 would be outside the family.
   The points undoubtedly are interesting, but having regard
to  the view which we have decided to take, it would not  be
necessary  to investigate the merits of either of them.   It
may be pointed out that the learned Judges of the High Court
proceeded  throughout on the assumption that the  plaintiffs
would have preferential rights of succession if the property
was  regarded as non-watan in the hands of Bhimabai.  It  is
only  if the property was watan that the Bombay Act of  1886
will  apply and the plaintiffs, who were  descended  through
females, would be postponed to defendant No. 4 who by  adop-
tion  became  a male member of the  family.   Mr.  Setalvad,
appearing  for  defendant No. 4 who is respondent No.  2  in
this  appeal,  contended before us that this  assumption  is
wrong, and that even if the property was regarded as  nonwa-
tan  property  and belonging absolutely to Bhimabai  as  her
stridhan, still as heir of Bhimabai's absolute property  the
defendant  No. 4 would  have higher rights than  the  plain-
tiffs.  As this point was not touched upon in the  judgments
of either of the courts below, we heard the learned  Counsel
on  both  sides at great length upon it and  the  conclusion
that  we have reached is that the contention of the  learned
AttorneyGeneral is well-founded and must prevail.
     For  the purpose of this argument we would assume  that
the   property  in suit was non-watan stridhan  property  of
Bhimabai   and the  only question is, as to who amongst  the
rival  claimants  would be the nearer heir after  her  death
according to the Hindu Law of inheritance ?  It is  admitted
that  Bhimabai died while she was a maiden and that a  maid-
en's property  under   the  Hindu  Law  goes  in  the  first
place  to  her uterine brothers, in default of them  to  the
mother  and  then to the father.  This is according  to  the
text of Baudhayana (1)which is accepted by all the commenta-
tors. Viramitrodaya adds to this that "on failure of  mother
and father it goes to their
(1) See Mitakshara, Chap. II, sec. XI, para 30.
215
nearest relations"(1). It has been held in a large number of
cases that the expression "nearest relations of the parents"
means  and  refers to the sapindas of then,  father  and  in
their  default  the sapindas of the mother both in order  of
propinquity(2).   In the case c before us, both  the  plain-
tiffs and defendant No. 4 are sapindas of Firangojirao,  the
plaintiffs  being the sister's sons of  Firangojirao,  while
the  latter is  his  paternal  uncle's son.  It is not  dis-
puted that  apart  from the changes introduced by the  Hindu
Law  of Inheritance (Amendment) Act, (Act II of  1929),  the
place of the paternal uncle's son in the line of heirs under
the Mitakshara Law of Succession is much higher than that of
the sister's son and the Mayukha Law, which prevails in  the
State  of Bombay, does not make any difference in  this  re-
spect.  Under the Mitakshara Law, the paternal  uncle  comes
just after the paternal grandfather and his son follows  him
immediately.   By Act II of 1929, however, four other  rela-
tions  have been introduced between the grandfather and  the
paternal  uncle and they are the son's daughter,  daughter's
daughter,  sister and sister's son, and the  paternal  uncle
and  his son are thus postponed to these four  relations  by
the Hindu Law of Inheritance Act of 1929.  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
(1) See Viramitrodaya, Chap. V, Part II, Sec. 9.
(2) See Mayne's Hindu Law, 11th edition, Art. 621, page 741.
216
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.   Whether this distinction between male and female
propositus is at all reasonable  is  another matter, but the
language of the Act makes this distinction expressly and  so
long  as  the language is clear and  unambiguous,  no  other
consideration is at all relevant. This is the view which has
been taken, and in our opinion quite rightly, in a number of
cases  of the Madras, Patna and Nagput High  Courts(1).   We
are not unmindful of the fact that a contrary view has  been
expressed  in  certain decisions of the Bombay,  Lahore  and
Allahabad  High Courts (2).  The line of reasoning  that  is
adopted in most of the decisions where the contrary view  is
taken  can  be thus stated in the language  of  Mr.  Justice
Somjee (3):__
    "The  Act is not sought to be applied to  determine  the
succession  to the stridhan of a Hindu maiden but is  sought
to  be used by the petitioner to ascertain the fourth  class
of heirs to the stridhan of a Hindu maiden mentioned at page
139  of Mulla's Hindu Law......  The heirs of the father  at
the  time of her death have to be ascertained in  accordance
with the Hindu Law as it existed at the time of the death of
Bai Champubai. Thus the Act comes into operation for  ascer-
taining the order in which the heirs of her father would  be
entitled to succeed to his estate, because the heirs of  the
father
    (1) Vide Manda Mahalakshmamma v. Mantravadi (I.L.R. 1947
Mad. 23); Shakuntalabai v. Court of Wards (I.L.R. 1942  Nag.
629);  Talukraj  Kuer v. Bacha Kuer (I.L.R.  26  Pat.  150);
Kuppuswami v Manickasari (A.I.R. 1950 Mad. 196).
    (2) Shamrao v. Raghunandan (I.L.R. 1939 Bom. 228);  Mst.
Charjo  v. Dinanath (A.I.R. 1937 Lah. 196);  Kehar Singh  v.
Attar  Singh  (A.I.R. 1944 Lah. 442); Indra Pal  v.  Humangi
Debi (I.L.R. 1949 All. 816).
(3)  Vide  Shamrao v. Raghunandan (I.L.R. 1939 Bom.  228  at
230).
217
in the order of propinquity who would be entitled to succeed
to  him if he died on August 3, 1937, would be the heirs  of
Bai  Champubai  in the absence of the uterine  brother,  the
mother and the father."
    It  is true that we have got to ascertain who the  heirs
of  the father are at the date when the daughter  dies,  but
the  enquiry is for the purpose of finding out who the  suc-
cessor  to  the estate of the daughter is.  This  being  the
subject  of the enquiry, the operation of Act II of 1029  is
excluded  by its express terms and for that purpose the  Act
is  to  be  treated as non-existent.  In  other  words,  the
stridhan  heirs are to be ascertained with reference to  the
general provisions of the Hindu Law of Inheritance  ignoring
the  statutory  heirs who have been introduced by  the  Act.
The  fallacy in the line of approach adopted in these  cases
seems  to be that they treat the Inheritance Act of 1929  as
amending or altering the Mitakshara Law of succession in all
cases  and for all purposes, whereas the Act has  absolutely
no  operation when succession to the separate property of  a
male is not the subject-matter of investigation.  The result
is  that in our opinion the plaintiffs are not  the  nearest
heirs  of Bhimabai even assuming that the property was  non-
watan and belonged to her absolutely.  The appeal will  thus
stand dismissed. We make no order as to costs in this appeal
except that defendant No. 1, the Court of Wards, would  have
its costs as between attorney and client out of the  estate.
The order for costs made by the courts below will stand.
                                   Appeal dismissed.
Agent for the appellant: M.S.K. Sastri.
Agent for respondent No. 1: P.A. Mehta.
Agent for respondent No. 2: K.J Kale.
218
PETITIONER:
TIKAIT HARGOBIND PRASAD SINGH
        Vs.
RESPONDENT:
SRIMATYA PHALDANI KUMARI.
DATE OF JUDGMENT:
29/11/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
BOSE, VIVIAN
CITATION:
 1952 AIR   38            1952 SCR  153
ACT:
    Ghatwali tenures--Birbhum  ghatwals--Succession--Widow's
right  to succeed in preference to nearest male agnate  when
family  is  joint --Custom--Hindu  law--Regulation  XXIX  of
1814.
HEADNOTE:
    Held  by the Full Court--Amongst the  Birbhum  ghatwals,
when  the holder of a ghatwali dies leaving a widow  but  no
direct  lineal descendants, the widow succeeds  in   prefer-
ence  to the nearest male agnate, even though the     family
may be a joint family.
   Per  MAHAJAN and Bose JJ.--The Mitakshara rule  that  the
property  inherited by a person from his immediate  paternal
ancestors  becomes  ancestral in his hands,  and  his  sons,
grandsons  and great-grandsons acquire a right in it at  the
moment of their birth has no application to Birbhum ghatwali
tenures.
    The  word  "descendants" is used in Regulation  XXIX  of
1814  loosely  in  the sense of "heirs" and  does  not  mean
lineal descendants.
    FAZL  ALI  J.--Custom and usage  are  important  factors
governing succession to ghatwali property, and while in some
cases custom may develop on the lines of Hind  law  relating
to  succession  0wing  to repeated instances  of  tacit  and
unquestioned application of the law, in other cases  succes-
sion  to ghatwali property may be governed not  entirely  by
Hindu law but by such law as modified in certain respects by
usage and custom.
    Fulbati  Kumari  v. Maheswari Prasad (A.I.R.  1923  Pat.
453) distinguished.
JUDGMENT:
    CIVIL  APPELLATE  JURISDICTION: Civil  Appeal No. 87  of
1950.  Appeal from the Judgment and Decree dated 8th  Febru-
ary, 1949, of the High Court of Judicature at Patna (Manohar
Lall  and  Mahabir  Prasad JJ .) in Appeal No.  38  of  1946
arising out of decree dated the 18th December, 1945, of  the
Subordinate Judge of Deoghar in Title Suit No. 1 of 1939.