Case ID: 55

Judgment:
ivil 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. 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	 article 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 vs Mantravadi (I.L.R. ; Shakuntalabai vs Court of Wards (I.L.R. 1942 Nag. 629); Talukraj Kuer vs Bacha Kuer (I.L.R. 26 Pat. 150); Kuppuswami v Manickasari (A.I.R. (2) Shamrao vs Raghunandan (I.L.R. ; Mst. Charjo vs Dinanath (A.I.R. ; Kehar Singh vs Attar Singh (A.I.R. 1944 Lah. 442); Indra Pal vs Humangi Debi (I.L.R. 1949 All. 816). (3) Vide Shamrao vs Raghunandan (I.L.R. 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 respondent No. 1: P.A. Mehta. Agent for respondent No. 2: K.J Kale.

Summary:
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 vs Mantravadi (I.L.R. 1947 Mad. 23)	 Shakuntala Bai vs Court of Wards (I.L.R. 1942 Nag. 629)	 Taluhraj Kuar vs Bacha Kuar (I.L.R. 28 Pat. 150)	 Kuppuswami vs Manickasari (A.I.R. approved. Shamrao vs Raghunandan (I.L.R. 	 Mst. Charjo vs Dinanath (A.I.R. 	 Kehar Singh vs Attar Singh (A.I.R. 	 Indra Pal vs Humangi Debi (I.L.R. 1949 All. 816) not approved.