ARUNACHALA GOUNDER (DEAD) BY LRS. versus PONNUSAMY AND ORS. on 20 January 2022

[2022] 1 S.C.R. 269

ARUNACHALA GOUNDER (DEAD) BY LRS.

v.

PONNUSAMY AND ORS.

(Civil Appeal No. 6659 of 2011)

JANUARY 20, 2022

[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]

Hindu Succession Act, 1956: Self acquired property of maleHindu dying intestate – Right of daughter of such male Hindu toinherit – Held: If a property of a male Hindu dying intestate is aself acquired property or obtained in partition of a co-parceneryor a family property, the same would devolve by inheritance andnot by survivorship, and a daughter of such a male Hindu wouldbe entitled to inherit such property in preference to other collaterals– In the case at hands, since the property in question was admittedlythe self-acquired property of male Hindu despite the family beingin state of jointness upon his death intestate, his sole survivingdaughter will inherit the same by inheritance and the property shallnot devolve by survivorship.

Hindu Succession Act, 1956: Scheme of the Act – Held: Themain scheme of this Act is to establish complete equality betweenmale and female with regard to property rights and the rights of thefemale were declared absolute, completely abolishing all notions ofa limited estate – The Act brought about changes in the law ofsuccession among Hindus and gave rights which were till thenunknown in relation to women’s property – The Act lays down auniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and DayabhagaSchools and also to those governed previously by theMurumakkattayam, Aliyasantana and Nambudri Laws – The Actapplies to every person, who is a Hindu by religion in any of itsforms including a Virashaiva, a Lingayat or a follower of the BrahmoPararthana 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.

Hindu Succession Act, 1956: s.14 – Absolute right of femaleHindu – Held: s.14 of the Act of 1956 declares property of a female

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AHindu to be her absolute property – The legislative intent of enactings.14(I) of the Act was to remedy the limitation of a Hindu womanwho could not claim absolute interest in the properties inherited byher but only had a life interest in the estate so inherited – s.14(1)converted all limited estates owned by women into absolute estatesand the succession of these properties in the absence of a will orBtestament would take place in consonance with s.15 of the Act, 1956.

Hindu Succession Act, 1956: s.15(2) – Purpose of enactment– Held: The basic aim of the legislature in enacting s.15(2) is toensure that inherited property of a female Hindu dying issuelessand intestate, goes back to the source – s.15(1)(d) provides thatCfailing all heirs of the female specified in Entries (a)-(c), but notuntil then, all her property howsoever acquired will devolve uponthe heirs of the father – The devolution upon the heirs of the fathershall be in the same order and according to the same rules as wouldhave applied if the property had belonged to the father and he hadDdied intestate in respect thereof immediately after her death –Applying the settled legal proposition to the facts of the case athands, since the succession of the suit properties opened in 1967upon death of Kupayee Ammal, the 1956 Act shall apply and therebyRamasamy Gounder’s daughter’s being Class-I heirs of their fathertoo shall also be heirs and entitled to 1/5th Share in each of the suitEproperties.

Conclusion

Hindu law: History and development – Hindus believe theirlaws to exist in the revelations preserved in ‘Vedas’, Shrutis (thatwhich are heard and revealed) and Smritis (that which is remembered)in contradiction to Shrutis – The Smritis comprise forensic law orFthe Dharma Shastra and are believed to be recorded in the verywords of Lord Brahma – The Dharma Shastra or forensic Law is tobe found primarily in the institutes or collections known as‘Sanhitas’, Smritis or in other words, the text books attributed tothe learned scholarly sages, such as, Manu, Yajnavalchya, Vishnu,Parasara and Guatama, etc. – Their writings are considered by theGHindus as authentic works – On these commentaries, digests andannotations have been written – The commentaries by variouslearned scholars have given rise to different schools of Hindu Law- like Daya Bhaga in Bengal, Mayukha in Bombay, Konkan andGujarat and Marumakkattayam or Nambudri in Kerala andHMitakshara in other parts of India – The Mitakshara school of law is one of the most important schools of law having a very widejurisdiction – It applies to majority of India with slight variationswith the fundamental principles being the same – The Mitaksharahas always been considered as the main authority for all the schoolsof law, with the sole exception of that of Bengal, which is mostlycovered by another school known as Daya Bhaga – The Mitaksharaschool derives majorly from the running commentaries of Smritiswritten by ‘Yajnavalkya’.

Hindu law: Dayabhaga system and Mitakshara system –Distinction between – The Dayabhaga system prevails in Bengal,while the Mitakshara system is applicable to other parts of India –The difference between the two systems arises from the fact that,while the doctrine of religious efficacy is the guiding principle underDayabhaga School, there is no such definite guiding principle underthe Mitakshara School – Sometimes consanguinity, and at the othertimes, religious efficacy has been regarded as the guiding principle– According to ‘Mulla’, Mitakshara recognises two modes ofdevolution of property, namely, survivorship and succession – Therules of survivorship apply to joint family property, and the rules ofsuccession apply to property held in absolute severalty by the lastowner.

Allowing the appeal, the Court

HELD: 1.1 The exact origin of Hindu Law is shrouded inantiquity, however, the Hindus believe their laws to exist in therevelations preserved in ‘Vedas’, Shrutis (that which are heardand revealed) and Smritis (that which is remembered) incontradiction to Shrutis. The Smritis comprise forensic law orthe Dharma Shastra and are believed to be recorded in the verywords of Lord Brahma. The Dharma Shastra or forensic Law isto be found primarily in the institutes or collections known as‘Sanhitas’, Smritis or in other words, the text books attributed tothe learned scholarly sages, such as, Manu, Yajnavalchya, Vishnu,Parasara and Guatama, etc. Their writings are considered by theHindus as authentic works. On these commentaries, digests andannotations have been written. These ancient sources have thus,charted the development of Hindu Law. These sources constantlyevolved over the years, embracing the whole system of law, and ABC

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Aare regarded as conclusive authorities. Besides these sourcescustoms, equity, justice, good conscience and judicial decisionshave also supplemented the development of Hindu Law.[Para 21][285-C-E]

1.2 The commentaries by various learned scholars haveBgiven rise to different schools of Hindu Law- like Daya Bhaga inBengal, Mayukha in Bombay, Konkan and Gujarat andMarumakkattayam or Nambudri in Kerala and Mitakshara inother parts of India. The Mitakshara school of law is one of themost important schools of law having a very wide jurisdiction. Itapplies to majority of India with slight variations with theCfundamental principles being the same. These slight variationsformed various sub- schools, namely, Banaras School, MithilaSchool, Maharashtra/Bombay School, Dravida/ Madras School.The Mitakshara is supposed to be the leading authority in theschool of Benaras. Mr. Colebrooke, a famous sanskrit scholar ofDBengal, writes “the range of its authority and influence is far moreextensive than that of Jinota Vahanas Treatise for it is receivedin all other schools of Hindu Law, from Benaras to the southernextremity of the Peninsula of India, as the chief groundwork ofthe doctrines which they follow, and as an authority from whichthey rarely dissent”. The Mitakshara has always been consideredEas the main authority for all the schools of law, with the soleexception of that of Bengal, which is mostly covered by anotherschool known as Daya Bhaga. [Paras 22, 23][285-F-H; 286-A-B]

Pranjivandas Tulsidas v. Dev Kuvarbai, Bomb. H.C.,B. 131 – approved.FTuljaram Morarji v. Mathuradas, Bhagvandas, andPranjivandas ILR (1881) 5 Bom 662; Chotay Lall v.Chunnoo Lall and Another 1874 SCC online Cal 10 –referred to.

1.3 One of the sub-schools of Mitakshara- the MadrasGschool of law tends to cover most of the southern part of India. Itexercises its authority under Mitakshara law school. TheMitakshara school derives majorly from the runningcommentaries of Smritis written by ‘Yajnavalkya’. Other important H

sources governing the Mitakshara school are ‘VyavasthaChandrika’ and most importantly Smriti Chandrika. The digestof ‘Yajnavalkya’ states that “What has been self-acquired by anyone, as an increment, without diminishing the paternal estate,likewise a gift from a friend or a marriage gift, does not belong tothe coheirs.” The purport of the text of ‘Vrihaspati’ in VyavasthaChandrika is that the brother or the father and like would nottake the property of a man who died without leaving a male, whenthe daughter is alive. By springing from the same limbs of thefather, a daughter has been treated in Smriti Chandrika as equalto a son. .” ‘NARADA’ aware of the equitableness of theproposition that it is the daughter who should succeed on thefailure of the son and the widow, says, “on failure of male issue,the daughter inherits, for she is equally a cause of perpetuatingthe race. [Paras 29, 30, 36, 37][287-D-E; 288-F-H]

1.4 ‘Mulla’ in his book Hindu Law (22nd Edition), whilediscussing the law prior to the Hindu Succession Act, 1956 saysthat there are two systems of inheritance amongst the Hindus inIndia, namely, Mitakshara system and Dayabhaga system. TheDayabhaga system prevails in Bengal, while the Mitaksharasystem is applicable to other parts of India. The difference betweenthe two systems arises from the fact that, while the doctrine ofreligious efficacy is the guiding principle under Dayabhaga School,there is no such definite guiding principle under the MitaksharaSchool. Sometimes consanguinity, and at the other times, religiousefficacy has been regarded as the guiding principle. According to‘Mulla’, Mitakshara recognises two modes of devolution ofproperty, namely, survivorship and succession. The rules ofsurvivorship apply to joint family property, and the rules ofsuccession apply to property held in absolute severalty by thelast owner. [Para 43][291-G-H; 292-A-B]

2.1 In Hindu Law by Mulla (22[nd] Edition) while determiningthe mode in which the property of a Hindu male, governed byMitakshara Law, devolves on his death, the following propositionsare to be noted :- (1) Where the deceased was, at the time of thedeath, a member of joint and undivided family, technically calledcoparcenary, his undivided interest Hindu Law by Mulla (22nd AB

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AEdition) in the coparcenary property devolves on his coparcenersby survivorship. (2) (i) Even if the deceased was joint at the timeof his death, he might have left self-acquired or separate property.Such property goes to his heirs by succession according to theorder given in § 43, and not to his coparceners; (ii) If the deceasedwas at the time of his death, the sole surviving member of aBcoparcenary property, the whole of his property, including thecoparcenary property, will pass to his heirs by successionaccording to the order given in § 43; (iii) If the deceased wasseparate at the time of his death from his coparceners, the wholeof his property, however acquired, will pass to his heirs byCsuccession according to the order given in § 43; (3) If thedeceased was re-united at the time of his death, his property willpass to his heirs by succession. [Para 44][292-C-G]

2.2 According to ‘Mulla’ under Mitakshara Law, the rightto inherit arises from propinquity, i.e., proximity of relationship.DMitakshara divided blood relations into three classes, namely -(a) Gotra-sapindas, i.e., Sapindas belonging to the same gotra orfamily as the deceased from 1st-7th degree; (b) Samanodaka, i.e.,persons belonging to the same gotra or family as the deceasedfrom 8th -14th degree; and (c) Bhinna gotra sapindas, i.e., Sapindasbelonging to a different gotra or family from the deceased. ‘GotraESapindas’ and ‘Samanodaka’ are persons connected to thedeceased by an unbroken line of male descendants i.e., all agantes;and Bhinna gotra sapindas are persons connected to the deceasedthrough a female i.e, cognates such as a sister’s son. ‘Bhinnagotra sapindas’ are also known as ‘Bandhus’ in Mitakshara. TheseFclassifications while now archaic and delineated as class-I, class-II, class-III and class- IV heirs under the Hindu Succession Act,1956, are of importance with respect to the property in questionconsidering its succession opened before the commencement ofthe Hindu Succession Act, 1956. [Paras 45, 46][292-G-H;293-B-D]G

2.3 The Gotra Sapindas of a person, according to Mitaksharaare :- (i) His six male descendants in the male line; i.e., his son,24 son’s son’s son, etc. (ii) His six male ascendants in the maleline, the wives of the first three of them, and probably also of thenext three; ie, his father, father’s father, father’s father’s father,H

etc, being Fl to F6 in the table and their wives, that is Ml to M6,being the mother, father’s mother, father’s father’s mother, etc.(iii) The six male descendants in the collateral male line of eachof his male ascendants; i.e., to X6 in the line of F1, being hisbrother, brother’s son, brother’s son’s son, etc; to X6 in the lineof F2, being his paternal uncle, paternal uncle’s son, etc; to X6 inthe line of F3, being his paternal grand-uncle, paternalgranduncle’s son, etc.; to X6 in the line of F4; to X6 in the line ofF5', and to x6 in the line of F6. (iv) His wife, daughter, anddaughter’s son. The Sapinda relationship extends to sevendegrees reckoned from and inclusive of the deceased and sixdegrees, if you exclude the deceased. The wife becomes a sapindaof the husband on marriage. The daughter’s son is not a gotrajasapinda, he is a bandhu because he is related to the deceasedthrough a female. However, for the purpose of succession, he isranked with gotraja sapindas. [Paras 47, 48][293-D-H; 294-A]

2.4 The Hindu Law of Inheritance (Amendment) Act, 1929was the earliest Statutory legislation which brought the Hindufemales into the scheme of inheritance. The 1929 Act introducedcertain female statutory heirs which were already recognized bythe Madras School, i.e., the son’s daughter, daughter’s daughter,sister and sister’s son in the order so specified, without makingany modifications in the fundamental concepts underlying thetextual Hindu Law relating to inheritance; only difference beingthat while before the Act, they succeeded as bandhus, under theAct, they inherited as ‘gotra sapindas’. The Mitakshara law alsorecognises inheritance by succession but only to the propertyseparately owned by an individual, male or female. Females areincluded as heirs to this kind of property by Mitakshara law.Before the Hindu Law of Inheritance (Amendment) Act 1929,the Bengal, Benares and Mithila sub-schools of Mitakshararecognised only five female relations as being entitled to inheritnamely - widow, daughter, mother paternal grandmother andpaternal great-grand mother. The Madras subschool recognizedthe heritable capacity of a larger number of females heirs that isof the son’s daughter, daughter’s daughter and the sister, as heirswho are expressly named as heirs in Hindu Law of Inheritance(Amendment) Act, 1929. The son’s daughter and the daughter’s AB

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Adaughter ranked as bandhus in Bombay and Madras. The Bombayschool which is most liberal to women, recognized a number ofother female heirs, including a half -sister, father’s sister andwomen married into the family such as stepmother, son’s widow,brother’s widow and also many other females classified asbandhus. Thus, it is abundantly clear that a daughter was in factBcapable of inheriting the father’s separate estate. [Paras 49,50][294-B-F]

Katama Natchiar v. Srimut Rajah Mootoo VijayaRaganadha Bodha Gooroo Sawmy Periya Odaya Taver(1863) 9 MIA 539; Sivagnana Tevar and Anr. v.CPeriasami & Ors. (1818) 1 ILR Madras 312;Ghurpatari & Ors. v. Smt. Sampati & Ors. AIR 1976All 195 – referred to

3. The Hindu Law of Inheritance (Amendment) Act II of1929 for the first time entitled the daughter’s daughter, subjectDto a special family or local custom, to succeed to the property ofa male Hindu governed by Mitakshara Law. Daughter’s daughterthen ranked 13th-B in the order of succession. The order ofsuccession to the estate of a Hindu dying interstate and governedby Mitakshara Law are set out in Paragraph 43 of Mulla’sEPrinciples of Hindu Law. Ancient text as also the Smritis, theCommentaries written by various renowned learned persons andeven judicial pronouncements have recognized the rights ofseveral female heirs, the wives and the daughter’s being theforemost of them. The rights of women in the family tomaintenance were in every case very substantial rights and onFwhole, it would seem that some of the commentators erred indrawing adverse inferences from the vague references towomen’s succession in the earlier Smritis. The views of theMitakshara on the matter are unmistakable. Vijneshwara alsonowhere endorses the view that women are incompetent toGinherit. [Paras 59, 64, 65][301-E-G; 304-B-D]

Lal Singh & Ors. v. Roor Singh & Ors.55 Punjab LawReporter 168; Gopal Singh & Ors. v. Ujagar Singh &Ors. AIR 1954 SC 579 : [1955] 1 SCR 86; Devidas &Ors. v. Vithabai & Anr (2008) 5 ML.LJ 296 – referredto.H

4.1 Right of a widow or daughter to inherit the self-acquiredproperty or share received in partition of a coparcenary propertyof a Hindu male dying intestate is well recognized not only underthe old customary Hindu Law but also by various judicialpronouncements. If a property of a male Hindu dying intestate isa self acquired property or obtained in partition of a co-parceneryor a family property, the same would devolve by inheritance andnot by survivorship, and a daughter of such a male Hindu wouldbe entitled to inherit such property in preference to othercollaterals. In the case at hands, since the property in questionwas admittedly the self-acquired property of Marappa Gounderdespite the family being in state of jointness upon his deathintestate, his sole surviving daughter Kupayee Ammal, will inheritthe same by inheritance and the property shall not devolve bysurvivorship. [Paras 66, 67][304-E-H]

4.2 Under the old customary Hindu Law, there arecontradictory opinions in respect of the order of succession tobe followed after the death of such a daughter inheriting theproperty from his father. One school is of the view that such adaughter inherits a limited estate like a widow, and after her deathwould revert back to the heirs of the deceased male who wouldbe entitled to inherit by survivorship. While other school ofthought holds the opposite view. This conflict of opinion may notbe relevant in the present case inasmuch as since KupayeeAmmal, daughter of Marappa Gounder, after inheriting the suitproperty upon the death of Marappa Gounder, died afterenforcement of Hindu Succession Act, 1956 which has amendedand codified the Hindu Law relating to intestate succession amongHindus. The main scheme of this Act is to establish completeequality between male and female with regard to property rightsand the rights of the female were declared absolute, completelyabolishing all notions of a limited estate. The Act brought aboutchanges in the law of succession among Hindus and gave rightswhich were till then unknown in relation to women’s property.The Act lays down a uniform and comprehensive system ofinheritance and applies, inter-alia, to persons governed by theMitakshara and Dayabhaga Schools and also to those governedpreviously by the Murumakkattayam, Aliyasantana and Nambudri AB

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ALaws. The Act applies to every person, who is a Hindu by religionin any of its forms including a Virashaiva, a Lingayat or a followerof the Brahmo Pararthana or Arya Samaj and even to any personwho is Buddhist, Jain or Sikh by religion excepting one who isMuslim, Christian, Parsi or Jew or Sikh by religion. Section 14 ofthe Act of 1956 declares property of a female Hindu to be herBabsolute property. The legislative intent of enacting Section 14(I)of the Act was to remedy the limitation of a Hindu woman whocould not claim absolute interest in the properties inherited byher but only had a life interest in the estate so inherited.[Paras 68, 69][305-A-F; 306-C-D]

C4.3 Section 14(1) converted all limited estates owned bywomen into absolute estates and the succession of theseproperties in the absence of a will or testament would take placein consonance with Section 15 of the Hindu Succession Act, 1956.The scheme of sub-Section (1) of Section 15 goes to show thatDproperty of Hindu females dying intestate is to devolve on herown heirs, the list whereof is enumerated in Clauses (a) to (e) ofSection 15 (1). Sub-Section (2) of Section 15 carves outexceptions only with regard to property acquired throughinheritance and further, the exception is confined to the propertyinherited by a Hindu female either from her father or mother, orEfrom her husband, or from her father-in-law. The exceptionscarved out by sub-Section (2) shall operate only in the event ofthe Hindu female dies without leaving any direct heirs, i.e., herson or daughter or children of the pre-deceased son or daughter.Thus, if a female Hindu dies intestate without leaving any issue,Fthen the property inherited by her from her father or motherwould go to the heirs of her father whereas the property inheritedfrom her husband or father-in-law would go to the heirs of thehusband. In case, a female Hindu dies leaving behind her husbandor any issue, then Section 15(1)(a) comes into operation and theproperties left behind including the properties which sheGinherited from her parents would devolve simultaneously uponher husband and her issues as provided in Section 15(1)(a) of theAct. [Paras 70, 71, 72][306-D; 307-G-H; 308-A-C]

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4.4 The basic aim of the legislature in enacting Section 15(2)is to ensure that inherited property of a female Hindu dyingissueless and intestate, goes back to the source. Section 15(1)(d)provides that failing all heirs of the female specified in Entries(a)-(c), but not until then, all her property howsoever acquiredwill devolve upon the heirs of the father. The devolution uponthe heirs of the father shall be in the same order and according tothe same rules as would have applied if the property had belongedto the father and he had died intestate in respect thereofimmediately after her death. In the present case the since thesuccession of the suit properties opened in 1967 upon death ofKupayee Ammal, the 1956 Act shall apply and thereby RamasamyGounder’s daughters being Class-I heirs of their father too shallbe heirs and entitled to 1/5th share each in the suit properties.Applying the above settled legal proposition to the facts of thecase at hands, since the succession of the suit properties openedin 1967 upon death of Kupayee Ammal, the 1956 Act shall applyand thereby Ramasamy Gounder’s daughter’s being Class-I heirsof their father too shall also be heirs and entitled to 1/5th Sharein each of the suit properties. [Paras 73, 74, 77][308-C-F;310-B-C]

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State of Punjab v. Balwant Singh & Ors. 1992 Supp.(3) SCC 108 : [1991] 1 suppl.SCR 458; Bhagat Ram(dead) by LRs. v. Teja Singh (dead) by LRs.16 (2002) 1SCC 210 – relied on.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.6659 of2011.

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From the Judgment and Order dated 21.01.2009 of the High Courtof Judicature at Madras in A.S. No.351 of 1994.

P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, Ms. V.Keerthana, Anubhav Chaturvedi, Pankaj Agarwal, Advs. for theAppellants.

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280SUPREME COURT REPORTS

AK. K. Mani, Ms. T. Archana, Advs. for the Respondents.

The Judgment of the Court was delivered by KRISHNA MURARI, J.

1. Challenge has been laid in this Civil Appeal to the judgment andBorder dated 21.01.2009 passed by the High Court of Judicature at Madras(hereinafter referred to as ‘High Court’) dismissing a regular First Appealbeing A.S. No. 351 of 1994 filed under Section 96 of the Code of CivilProcedure, 1908, challenging the judgment and decree dated 01.03.1994rendered by the Trial Court dismissing Original Suit No. 295 of 1991 forpartition filed by the appellant herein, claiming 1/5th share in the suitCproperties.

2. The following genealogy of the parties is necessary to be taken

2. The following genealogy of the parties is necessary to be taken D

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note of for appreciating their claims and contentions :-

3. Suit for partition was filed by Thangammal, daughter ofRamasamy Gounder, claiming 1/5th share in the suit property on theallegations that the plaintiff and defendant nos. 5 and 6, namely, Elayammaland Nallammal and one Ramayeeammal are sisters of GurunathaGounder, all the five of them being the children of Ramasamy Gounder.The said Ramasamy Gounder had an elder brother by the name ofMarappa Gounder. Ramasamy Gounder, predeceased his brotherMarappa Gounder who died on 14.04.1957 leaving behind the soledaughter by the name of Kuppayee Ammal who also died issueless in1967. Further case set up by the plaintiff/appellant was that after thedeath of Marappa Gounder, his property was inherited by KuppayeeAmmal and upon her death in 1967, all the five children of RamasamyGounder, namely, Gurunatha Gounder, Thangammal (Original Plaintiffnow represented by legal heir), Ramayeeammal, Elayammal andNallammal are heirs in equal of Kuppayee and entitled to 1/5th shareeach.

4. Gurunatha Gounder, died leaving behind defendant nos. 1 to 4(Respondents herein) as heirs and legal representatives. Ramayeeammaldied leaving behind defendants 7 to 9. The plaintiff-appellant,Thangammal, died leaving behind, appellant nos. 1, 3 and 4 herein andAppellant no. 1, Arunachala Gounder, since having died is representedby her legal representatives appellant no. 1, Venkatachalam and appeallantno. 2, A. Mottaiyappan.

5. The defence set up by the defendant-respondents was thatMarappa Gounder died on 11.05.1949 and not on 14.04.1957 as allegedby the plaintiff-appellant and as per the provisions of Hindu Law prevailingprior to 1956, Gurunatha Gounder was the sole heir of Marappa Gounderand accordingly, he inherited the suit properties and was in possessionand enjoyment of these properties and after his death the respondentsherein, were continuing as lawful owners.

6. It is an undisputed fact between the parties that the property inquestion i.e., the suit property, was independently purchased by MarappaGounder in the year 1938 through the process of a Court auction andthus, it was his independent property. However, there was a issue betweenthe parties in respect of the date of death of Marappa Gounder. The A

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Aplaintiff – appellant asserted the date of death as 14.04.1957, whereasthe defendant-respondent pleaded the date of death as 15.04.1949.

7. The Trial Court after considering the evidence brought on recordof the case by the parties concluded that Marappa Gounder died on15.04.1949 and thus, the suit property would devolve upon the sole sonBof deceased Ramasamy Gounder, the deceased brother of MarappaGounder by survivorship and the plaintiff-appellant had no right to filethe suit for partition and, accordingly, dismissed the suit.

8. The findings recorded by the Trial Court particularly in respectof the date of death of Marappa Gounder in 1949 was confirmed by theCHigh Court in the first appeal and the decree dismissing the suit forpartition was affirmed holding that the property would devolve upon thedefendant by way of survivorship.

9. We have heard Shri P.V. Yogeswaran, learned counsel for theappellant and Shri K.K. Mani, learned counsel for the respondents.

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Arguments on behlaf of Appellants

10. Shri P.V. Yogeswaran, learned counsel for the appellant submitsthat since the property was purchased through Court auction sale by theMarappa Gounder on 15.12.1938, hence, it is his independent propertyand it was never considered as a joint family property, as such on deathEof Marappa Gounder, this property would devolve by succession uponhis daughter, Kupayee Ammal, who died in the year 1967. He furthersubmitted that under the law of Mitakshara, the right to inheritancedepends upon propinquity i.e., proximity of relationship. Since, thedaughter has closer proximity of relationship, she would inherit theFproperty from the father instead of the father’s brother’s son and daughter.

11. He further points out that there are three classes of heirsrecognized by Mitakshara, namely, (a) Gotrajasapindas, (b) Samanodakasand (c)Bandhus. The first class succeeds before the second and thesecond succeeds before the third. To support the contentions, he made areference to Mulla Hindu Law 23[rd] Edition. He also submitted that underGthe Hindu Law, a daughter is not disqualified to inherit in separate propertyof her father and when a male Hindu dies without a son leaving onlydaughter, his separate property would devolve upon the daughter throughsuccession and the property will not devolve upon brother’s son throughsurvivorship and the Courts below have wrongly applied the principles H

of Hindu Law and dismissed the suit. In support of his contention, hecited references from various commentaries which we shall deal with atappropriate place.

Arguments on behlaf of Respondents

12. Shri K.K. Mani, learned counsel representing respondentssubmitted that the property in question was purchased by MarappaGounder in Court auction sale out of the family funds and thus, it was ajoint property, and on his death, since he had no male heir, the defendantas a coparcener succeeded to the estate. He further submitted that theTrial Court after scrutinizing the evidence brought on record by the partiescame to the conclusion that the paternal uncle of plaintiff, MarappaGounder, died prior to the enforcement of Hindu Succession Act, 1956and, therefore, the plaintiff and other sisters of the plaintiff were not theheirs as on the date of death of Marappa Gounder in the year 1949 andthus, plaintiff was not entitled to the partition of 1/5th share in the suitproperties, and thus, the suit was rightly dismissed. He further submitsthat when the date of death of Marappa Gounder, was confirmed to bein the year 1949, the Succession to his properties would open in the year1949 when Kupayee Ammal, the daughter of Marappa Gounder, wasnot having any right to inherit the property left by her deceased father.The only heir available at the time of death of Marappa Gounder wasGuranatha Gounder, the son of Ramasamy Gounder, who was none otherthan the father of the Defendants 1 to 4. Once the properties of MarappaGounder devolved upon Guranatha Gounder, it became his property and,therefore, it could not be made the subject matter of the partition afterthe promulgation of Hindu Succession Act, 1956. He also submitted thatneither any issue was framed nor any evidence was led by the plaintiff-appellant throughout the entire proceedings to establish that propertypurchased in the Court auction in the year 1938 was a self-acquiredproperty of Marappa Gounder and thus, it would be presumed that itwas a joint family property leaving no rights in his daughter to inherit thesame.

13. We have considered the arguments advanced by the learnedcounsel for the parties and with their assistance perused the record ofthe case and the various texts and commentaries pertaining to HinduLaw.

14. Insofar as, the date of death of Marappa Gounder being15.04.1949, it is a finding of fact affirmed by the two fact-finding Courts A

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Abased on appreciation of material evidence existing on the record of thecase and is not liable to be interfered with and we proceed to decide theissue between the parties taking the date of death of Marappa Gounderas 15.04.1949.

15. The other aspect of the matter is whether the suit propertyBwas exclusively purchased by Marappa Gounder in the Court auctionand was his separate property or it was purchased out of the joint familyfund making it a joint family property. It is correct that neither any issuewas framed by Trial Court in this regard nor any evidence was led bythe parties nor any finding has been returned. However, in view of theadmission made by the defendant in para 3 of the written statement thatCsuit properties are absolute properties of Marappa Gounder, he havingpurchased the same in a Court auction sale on 19.09.1938, there washardly any necessity to frame any issue in this regard, once the fact wasadmitted in written statement.

16. It may be relevant to extract the relevant part of paragraph 3Dof the written statement which reads as under :- “3. It is true that the suit properties are the absolute propertiesof the Marappa Gounder, he having purchased the suitproperties in the Court auction sale on 19.09.1938.”

17. Furthermore, the defendants themselves have nowhere pleadedEthat purchase of suit property was made by Marappa Gounder out ofthe joint family funds. There is a clear admission in the written statementthat 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 learnedFcounsel for the respondent, in this regard, has no force and not liable tobe accepted.

18. In the backdrop of the above facts, the primary issue whicharises for our consideration is with respect to the right of the sole daughterto inherit the self-acquired property of her father, in the absence of anyGother legal heir having inheritable rights before the commencement ofthe Hindu Succession Act, 1956 or in other words, whether such suitproperty will devolve on to the daughter upon the death of her fatherintestate by inheritance or shall devolve on to father’s brother’s son bysurvivorship.

H19. The determination and adjudication of the issue depends upon the answers to the following questions :-

1) What is the nature of the property and what would be thecourse of succession if it is a separate property as opposedto undivided property?

2) Whether a sole daughter could inherit her father’s separateproperty dying intestate? And if so -

3) What would be the order of succession after the death ofsuch daughter?

20. To answer these questions, we are required to delve into theconcepts of old Hindu Law and its application. It is also imperative tolook into it’s origin and sources.

Sources of Hindu Law

21. The exact origin of Hindu Law is shrouded in antiquity, however,the Hindus believe their laws to exist in the revelations preserved in‘Vedas’, Shrutis (that which are heard and revealed) and Smritis incontradiction to Shrutis (that which is remembered). The Smritis compriseforensic law or the Dharma Shastra and are believed to be recorded inthe very words of Lord Brahma. The Dharma Shastra or forensic Lawis to be found primarily in the institutes or collections known as ‘Sanhitas’,Smritis or in other words, the text books attributed to the learned scholarlysages, such as, Manu, Yajnavalchya, Vishnu, Parasara and Guatama,etc. Their writings are considered by the Hindus as authentic works. Onthese commentaries, digests and annotations have been written. Theseancient sources have thus, charted the development of Hindu Law. Thesesources constantly evolved over the years, embracing the whole systemof law, and are regarded as conclusive authorities. Besides these sourcescustoms, equity, justice, good conscience and judicial decisions have alsosupplemented the development of Hindu Law.

22. The commentaries by various learned scholars have givenrise to different schools of Hindu Law- like Daya Bhaga in Bengal,Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam orNambudri in Kerala and Mitakshara in other parts of India. TheMitakshara school of law is one of the most important schools of lawhaving a very vide jurisdiction. It applies to majority of India with slightvariations with the fundamental principles being the same. These slightvariations formed various sub-schools, namely, Banaras School, MithilaSchool, Maharashtra/Bombay School, Dravida/ Madras School.

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A23. The Mitakshara is supposed to be the leading authority in theschool of Benaras. Mr. Colebrooke, a famous sanskrit scholar of Bengal,writes “the range of its authority and influence is far more extensivethan that of Jinota Vahanas Treatise for it is received in all other schoolsof Hindu Law, from Benaras to the southern extremity of the Peninsulaof India, as the chief groundwork of the doctrines which they follow, andBas an authority from which they rarely dissent”[1]. The Mitakshara hasalways been considered as the main authority for all the schools of law,with the sole exception of that of Bengal, which is mostly covered byanother school known as Daya Bhaga.

24. Reference may also be made to another observation at Page-C165, where it is stated as under :- “Failing male issue, therefore, a widow takes the self- acquiredproperty of her husband. No doubt, on failure of male issueand a widow, the daughter would take.”

25. The commentary also refers to a case of PranjivandasDTulsidas Vs. Dev Kuvarbai, 1 Bomb. H.C., B. 131, wherein a Hinduowning separate property died without a male issue, leaving behind – awidow, four daughter and a brother and male issues of other deceasedbrothers. The Court observed that the widow was entitled to a life estatein the property and subject to her interest the property would devolve toEthe daughters absolutely in preference to the brother and the issue of thedeceased brothers.

26. References to this case have also been made in numerousreported as well as unreported cases; as in the case of Tuljaram Morarjivs. Mathuradas, Bhagvandas, and Pranjivandas[2], it was observedthat :-F

“…The decision in that case and that in Pranjivandas vs.Devkuvarbai have been steadily followed by the High Courtin numerous unreported cases, and by the legal profession….Any departure now from those decisions would cause muchconfusion and injustice throughout this Presidency, and noGadvantage that we can perceive. We, therefore, must abide by

1 A Treatise on Hindoo Law by Standish Grove Grady published in1868 by GantzBrother Mount Road, Madras.2 ILR (1881) 5 Bom 662H3 1874 SCC OnLine Cal 10

the principles which they clearly indicate.”

27. In the case of Chotay Lall vs. Chunnoo Lall and Another[3]the Court noted:- “The following are the direct authorities on the point. Sir M.Sausse in 1859, in Pranjivandas Tulsidas v. Devkuvarbai (2),held that a daughter takes absolutely when inheriting fromher father. In Bhaskar Trimbak Acharya v. Mahadev Ramji , decided in January 1869 by SirJoseph Arnould, the head note states that all property acquiredby a married woman by inheritance (except from her husband)classes as stridhan, and descends accordingly. But this caseis founded exclusively on the case of Pranjivandas Tulsidas

v. Devkuvarbai.

28. However, despite our best efforts we could not get a copy ofthe judgment in the case of Pranjivandas (Supra), therefore, we arerelying upon the aforesaid observations made in the said case by theBombay High Court as mentioned in the commentary by Standish GroveGrady and the above-mentioned cases.

29. One of the sub-schools of Mitakshara- the Madras school oflaw tends to cover most of the southern part of India. It exercises itsauthority under Mitakshara law school. The Mitakshara school derivesmajorly from the running commentaries of Smritis written by‘Yajnavalkya’. Other important sources governing the Mitakshara schoolare ‘Vyavastha Chandrika’ and most importantly Smriti Chandrika.

30. The digest of ‘Yajnavalkya’ states that “What has been self-acquired by any one, as an increment, without diminishing thepaternal estate, likewise a gift from a friend or a marriage gift,does not belong to the co- heirs.”

31. It may also be relevant to refer to commentaries andannotations from The principles and elements of Hindu Law in the formof a digest by Shyama Charan Sarkar Vidya Bhushan, known as‘Vyavastha Chandrika’[4], a digest of Hindu Law. Section II of the saiddigest deals with Daughters’ Right of Succession.

4 Vyavastha-Chandrika, A Digest of Hindu Law by Shyama Charan Sarkar, VidyaBhushan printed in 1878 by I.C.Bose & Co., STANHOPE PRESS 249, Bow-Bazar,Calcutta.

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A32. In Clause 118 of Section II of the commentary, it is stated asunder :- “In default of the widow, the daughters inherit the estate ofthe man who died separated (from his coparceners) and notre-united (with them).”

B33. It also quotes ‘Vishnu’ and ‘Vrihaspati’ as under:- “Vishnu : The wealth of a man who leaves no male issue goesto his wife; on failure of her, to his daughter.

Vrihaspati: The wife is pronounced successor to the wealthof her husband; in her default, the daughter. As a son, soCdoes the daughter of a man proceed from his several limbs.How then, should any other person (b) take her father’swealth?

(B) Any other person - These terms exclude the son and widow,(who are preferable heirs), and include the father and theDrest. - Smriti Chandrika, Chapter- XI, Section (ii), Clause 5and 6.

“The meaning is how could the father and the rest take theproperty of a son-less man, while the daughter is alive.”

34. It also quotes ‘Manu’ as under :-E“Manu:- The son of a man is even as himself, and thedaughter is equal to the son. How then can any other inherithis property, notwithstanding the survival of her, who is, as itwere, himself.”

35. Clause 120 of the ‘Vyavastha Chandrika’ reads as under :-F

“120 :- A daughter being entitled to inherit the dividedproperty of her father, it has been, by parity of reasoning,determined that, she is entitled to inherit also such propertyas was separately acquired or held by him, or was vested inhim.”

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36. The purport of the text of ‘Vrihaspati’ is that the brother orthe father and like would not take the property of a man who died withoutleaving a male, when the daughter is alive. By springing from the samelimbs of the father, a daughter has been treated in Smriti Chandrika asequal to a son.

H37. ‘NARADA’ aware of the equitableness of the proposition that it is the daughter who should succeed on the failure of the son andthe widow, says, “on failure of male issue, the daughter inherits, for sheis equally a cause of perpetuating the race.”

38. Standish Grove Grady in his book ‘Treatise’ on Hindoo Lawof Inheritance published in 1868, in Chapter IX - ‘Inheritance ofSuccession’ while discussing the line of descent, has observed as under:- “Line of Descent -It will be seen in the course of this chapterthat the Hindoo Law of inheritance comprehends thedeceased’s family and his near relations, viz, his issue, maleand female; his widow, who takes immediately in default ofsons- a term which includes grandsons and great-grandsons.On exhaustion of this line of descent, the succession ascendsto his parents, brothers, nephews, and grand nephews, thisline continuing upwards to the grandfather and great-grandfather, the grandmother and great grandmother, thelatter being given precedence by those who have preferredthe mother to the father. The succession then runs downwardsto their respective issue, including daughter’s sons, but notdaughters, the whole being preferred to the half blood; thenfollow the more remote kindred which we shall presentlyenumerate.

In proportion as the claimant becomes remote, the particularsvary with different schools and authors presently pointed out.

In default of natural kind, the series of heirs in all the classes,except that of Brahmins, closes with the preceptor of thedeceased, his pupil, his priest, hired to perform sacrifices, orhis fellow-student, each in his order and falling all these, thelawful heirs of the Kshtrya, Vashya and Soodra, who arelearned and virtuous Brahmins, resident in the same town orvillage with the deceased.

If an estate should vest by succession in a Brahmin-as he,being such, cannot perform obsequies for one of an inferiorcaste – the duty may be discharged by substitution of aqualified person, equal in class with the deceased. In all caseswhere the heir is under disabilities, he must take the samecourse, paying the person employed for his services. The kingtoo where the he takes by escheat, must cause obsequies to AB

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Abe performed for the deceased.

The Hindoos give the agnate succession the preference, thesuccession of females being deemed exceptions.

Females cannot on account of their sex perform obsequies.They do not, therefore, confer any benefit and are generallyBdisqualified from inheriting. From this rule, there are onlyfour exceptions for special reasons, viz, the widow, thedaughter, the mother and the grandmother. According to theBenaras and Mithila Schools, the females above-mentionedinherit only when the family is divided. In an undivided family,females are not admitted as heirs. There are two modes ofCdevolution of property :-

(I) From a sole separate owner

(ii) From a female.

Property of a united owner cannot be considered as devolvingDupon the rest, they being joint proprietors by birth. In thesecond class, the property will, in part, be affected by therights of collateral sharers.

But even in undivided families, a widow takes the self-acquiredproperty of her husband.

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In the case of self-acquired property in the same Chapter,Grady states :-

“It may safely be stated as a true proposition that property,which is not ancesteral, is self-acquired, in whatever way theproperty may have been obtained, whether by gift or purchaseFor labour, mental or physical, or otherwise.

Referring to judgment of Katama Natchiar Vs. The Rajah ofShivagunga (which we shall deliberate in the later part of thejudgment), he observes when a Zaminadari was escheatedon the death of the last zamindar, the government granted it aGnew to a distant relation of his. This was treated as self-acquiredproperty. That case has decided that all self-acquired propertydevolves in the same way as the family property of a dividedmember. Failing male issue, therefore, a widow takes the self-acquired property of her husband. No doubt, on the failure5 Hindu Law and Judicature from the Dharma-Sastra of ‘Yajnavalkya’ published inH1859.

of male issue and a widow, the daughter would take”.

39. In the commentary titled as ‘Hindu Law and Judicature’ -from the Dharma-sastra of Yajnavalkya[5] by renowned authors EdwardRoer, PH.D., M.D. and W.A. Montriou, in Clause 135, it is stated asunder :- “135. If a man depart this life without male issue; (i) his wife,(ii) his daughter, (iii) his parents, (iv) his brothers, (v) thesons of his brothers, (vi) others of the same gotra, (vii) kindredmore remote, (viii) a pupil, (ix) a fellow-student - these succeedto the inheritance, each class upon failure of the onepreceding. This rule applies to all the caste.”

40. In another digest “Hindu Law as administered in the Courtsof Madras Presidency[6]”, arranged and annotated by H.S. Cunningham,the then Advocate General of Madras, it is stated in Clause 203 ofChapter VI, dealing with inheritance by daughters as under :- “Clause-203:- In default of sons, grandsons, great grandsons,and widows, the daughter succeeds to a life estate in herfather’s property.

41. Clause 206 of the said commentary provides that ‘a marrieddaughters and daughters who are widows succeed irrespectively of thefact of their being barren or having no male issue’ and similarly, Clause207 reads as under :- “Clause-207:- Daughters of each class hold their estatejointly; the share of any daughter dying vests in the survivingdaughter or daughters of the same class, and descends to thedaughters of the next class only when all the daughters ofthe prior class are exhausted. In each class, a daughter whohas not been endowed on marriage, succeeds in preferenceto the daughter who has been endowed.”

42. Clause 209 in the said commentary reads as under :- “Clause 209:- The daughter succeeds on the death of herfather’s widow, notwithstanding that such widow be not hermother.”

6 A Digest of Hindu Law- As administered in the Courts of The Madras Presidency,published in 1877 by HIGGINBOTHAM & Co.

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A43. ‘Mulla’ in his book Hindu Law (22[nd] Edition), while discussingthe law prior to the Hindu Succession Act, 1956 says that there are twosystems of inheritance amongst the Hindus in India, namely, Mitaksharasystem and Dayabhaga system. The Dayabhaga system prevails inBengal, while the Mitakshara system is applicable to other parts ofIndia. The difference between the two systems arises from the factBthat, while the doctrine of religious efficacy is the guiding principle underDayabhaga School, there is no such definite guiding principle under theMitakshara School. Sometimes consanguinity, and at the other times,religious efficacy has been regarded as the guiding principle. Accordingto ‘Mulla’, Mitakshara recognises two modes of devolution of property,Cnamely, survivorship and succession. The rules of survivorship apply tojoint family property, and the rules of succession apply to property heldin absolute severalty by the last owner.

44. It may also be relevant to refer to §34 regarding devolution ofproperty according to Mitakshara Law[7] - In determining the mode inDwhich the property of a Hindu male, governed by Mitakshara Law,devolves on his death, the following propositions are to be noted :-

(1) Where the deceased was, at the time of the death, a memberof joint and undivided family, technically called coparcenary,his undivided interest in the coparcenary property devolvesEon his coparceners by survivorship.

(2) (i) Even if the deceased was joint at the time of his death,he might have left self-acquired or separate property. Suchproperty goes to his heirs by succession according to theorder given in § 43, and not to his coparceners; F

(ii) If the deceased was at the time of his death, the solesurviving member of a coparcenary property, the whole ofhis property, including the coparcenary property, will passto his heirs by succession according to the order given in §43; G(iii)If the deceased was separate at the time of his deathfrom his coparceners, the whole of his property, howeveracquired, will pass to his heirs by succession according tothe order given in § 43;

(3) If the deceased was re-united at the time of his death, hisH7 Hindu Law by Mulla (22nd Edition)

property will pass to his heirs by succession according tothe Rule laid down in §60.

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45. According to ‘Mulla’ under Mitakshara Law, the right to inheritarises from propinquity, i.e., proximity of relationship. Mitakshara dividedblood relations into three classes, namely - B

(a) Gotra-sapindas, i.e., Sapindas belonging to the same gotraor family as the deceased from 1[st]-7[th] degree; (b)Samanodaka, i.e., persons belonging to the same gotra orfamily as the deceased from 8[th] -14[th] degree; and

(c) Bhinna gotra sapindas, i.e., Sapindas belonging to a differentgotra or family from the deceased.

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46. ‘Gotra Sapindas’ and ‘Samanodaka’ are persons connectedto the deceased by an unbroken line of male descendants i.e., all agantes;and Bhinna gotra sapindas are persons connected to the deceased througha female i.e, cognates such as a sister’s son. ‘Bhinna gotra sapindas’are also known as ‘Bandhus’ in Mitakshara. These classifications whilenow archaic and delineated as class-I, class-II, class-III and class-IVheirs under the Hindu Succession Act, 1956, are of importance withrespect to the property in question considering its succession openedbefore the commencement of the Hindu Succession Act, 1956.

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47. The Gotra Sapindas of a person, according to Mitaksharaare:-

(i) His six male descendants in the male line; i.e., his son, son’sson’s son, etc.

(ii) His six male ascendants in the male line, the wives of thefirst three of them, and probably also of the next three; ie,his father, father’s father, father’s father’s father, etc, beingFl to F6 in the table and their wives, that is Ml to M6, beingthe mother, father’s mother, father’s father’s mother, etc.

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(iii) The six male descendants in the collateral male line of eachGof his male ascendants; i.e., to X6 in the line of F1, beinghis brother, brother’s son, brother’s son’s son, etc; to X6 inthe line of F2, being his paternal uncle, paternal uncle’s son,etc; to X6 in the line of F3, being his paternal grand-uncle,paternal granduncle’s son, etc.; to X6 in the line of F4; to H

AX6 in the line of F5', and to x6 in the line of F6.

(iv) His wife, daughter, and daughter’s son.

48. The Sapinda relationship extends to seven degrees reckonedfrom and inclusive of the deceased and six degrees, if you exclude thedeceased. The wife becomes a sapinda of the husband on marriage.BThe daughter’s son is not a gotraja sapinda, he is a bandhu because he isrelated to the deceased through a female. However, for the purpose ofsuccession, he is ranked with gotraja sapindas.

49. The Hindu Law of Inheritance (Amendment) Act, 1929 wasthe earliest Statutory legislation which brought the Hindu females intoCthe scheme of inheritance. The 1929 Act introduced certain femalestatutory heirs which were already recognized by the Madras School,i.e., the son’s daughter, daughter’s daughter, sister and sister’s son in theorder so specified, without making any modifications in the fundamentalconcepts underlying the textual Hindu Law relating to inheritance; only Ddifference being that while before the Act, they succeeded as bandhus,under the Act, they inherited as ‘gotra sapindas’.

50. The Mitakshara law also recognises inheritance by successionbut only to the property separately owned by an individual, male or female.Females are included as heirs to this kind of property by MitaksharaElaw. Before the Hindu Law of Inheritance (Amendment) Act 1929, theBengal, Benares and Mithila sub-schools of Mitakshara recognised onlyfive female relations as being entitled to inherit namely - widow, daughter,mother paternal grandmother and paternal great-grand mother. TheMadras sub- school recognized the heritable capacity of a larger numberof females heirs that is of the son’s daughter, daughter’s daughter andFthe sister, as heirs who are expressly named as heirs in Hindu Law ofInheritance (Amendment) Act, 1929. The son’s daughter and thedaughter’s daughter ranked as bandhus in Bombay and Madras. TheBombay school which is most liberal to women, recognized a number ofother female heirs, including a half -sister, father’s sister and womenGmarried into the family such as stepmother, son’s widow, brother’s widowand also many other females classified as bandhus. From the abovediscussions, it is abundantly clear that a daughter was in fact capable ofinheriting the father’s separate estate.

Judicial Precedents

51. Privy Council has delivered some notable judgments on theissue arising for adjudication in the case at hands. Reference may bemade to the case of Katama Natchiar Vs. Srimut Rajah Mootoo VijayaRaganadha Bodha Gooroo Sawmy Periya Odaya Taver[8]. The disputein the appeal before the Privy Council was in respect of the Right ofInheritance of Shivagunga Zamindary, situate in the District Maduaa,Presidency of Madras. The Privy Council after noticing the facts of thelong litigation and the three suits filed between the parties, which weredismissed by the Provincial Court and the appeal was filed in each of thethree suits which were heard together and disposed of by the decree ofthe Sudder Court. The Privy Council noted the following argumentsadvanced before it, by Anga Moottoo Natchiar, as under :-

“She submitted as in issue of fact that the Zamindar had beenacquired by the sole exertions and merits of her husband;and as an issue of law that what is acquired by a man, withoutemployment of his patrimony, shall not be inherited by herbrothers and co-heirs, but if he dies without male issue, shalldescend to his widows, his daughters and the parents, beforegoing to her brothers or remoter collaterals.

52. After analysing the factual aspects in details, the Privy Councilposed three questions as under :- “The substantial contest between the appellant and the respondentis, as it was between Anga Mootoo Natchiar and the respondent’spredecessors, whether the Zamindary ought to have descendedin the male and collateral line; and the determination of this issuedepends on the answers to be given to one or more of the followingquestions :

(i) Were Gowery Vallabha Taver and his brother, Oya Taver,undivided in estate, or had a partition taken place betweenthem?

(ii) If they were undivided, was the zemindary the self- acquiredand separate property or Gowery Vallabha Taver? and ifso-

(iii) What is the course of succession according to the HindooLaw of the South of India of such an acquisition, where the A

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Afamily is in other respects an undivided family?

53. Insofar as, the first question is concerned, the Privy Councildid not disturb the findings in the decree of 1847 that Gowery VallabhaTaver and his brother, after the acquisition by the former of the zemindary,lived very much as if they were separate. The second question wasanswered in affirmative. With respect to the third question, the PrivyCouncil observed as under :- B

“The third question is one of nicety and of some difficulty.The conclusion which the Courts in India have arrived atupon it, is founded upon the opinion of the Pundits, and uponauthorities referred to by them. We shall presently examinethose opinions and authorities; but before doing so, it will bewell to consider more fully the law of inheritance as it prevailsat Madras and throughout the southern parts of India, andthe principles on in these parts of India is to be found in theMitacshara, and in ch.II., sec. 1, of that work the right ofwindows to inherit in default of male issue is fully consideredand discussed.

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The Mitacshara purports to be a commentary upon the earlierinstitutes of Yajnyawalcya; and the section in question beginsby citing a text from that work, which. Affirms in general termsthe right of the window to inherit on the failure of male issue.But then the author of the Mitacshara refers to variousauthorities which are apparently in conflict with the doctrinesof Yajnyawalcya, and, after reviewing those authoritesi, seeksto re3concile them by coming to the conclusion “that a weddedwife, 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 istrue, taken by itself, does not carry the rights of widows toinherit beyond the cases in which their husbands have diedin a state of separation from their co-heirs, and leaving nomale issue; but it is to be observed that the text is propoundedas a qualification of the larger and more general propositionin 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 veryterms of the text refer to eases in which the whole estate of E

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the deceased has been his separate property, and, indeed,the whole chapter in which the text is contained, seems todeal only with cases in which the property in question hasbeen either wholly the common property of a united family,or wholly the separate property of the deceased husband Wefind no trace in it of a case like that before us, in which theproperty in question may have been in part the commonproperty of a unit4ed family, and in part the separateacquisition of the deceased; and it cannot, we think, beassumed that because widows take the whole estates of theirhusbands when they have been separated from, and notsubsequently re-united with, their co-heirs, and have diedleaving n™ male issue, they cannot, when their husbandshave not been so separated, take any part of their estates,although it may have been their husband’s separateacquisition. The text, therefore, does not seem to us to governthis case.

There being then no positive text governing the case beforeus, we must look to the principles of the law to guide us indetermining it. It is to be observed, in the first place, that thegeneral course of descent of separate property according tothe Hindoo law is no disputed. It is admitted that, accordingto that law, such property descends to windows in default ofmale issue. It is upon the Respondent, therefore, to make outthat the property here in question, which was separatelyacquired, does not descend according to the general courseof the law. The way in which this is attempted to be done, isby showing a general state of co- parcenaryship as to thefamily property; but assuming this to have been proved, or tobe presumable from there being no disproof of the normalstate of co- parcenaryship, this proof, or absence of proof,cannot alter the case, unless it be also the law that there cannotbe property belonging to a member of a united Hindoo family,which descends in a course different from that of the descentof a. share of the property held in union; but such aproposition is new, unsupported by authority, and at variancewith principle. Thai two courses of descent may obtain on apart division of join property, is apparent from a passage in AB

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W.H. Macnaghten’s “Hindu Law,” title “Partition,” vol. I. p.53, where it is said as follows: “According to the more correctopinion, where there is an undivided residue, it is not subjectto the ordinary rules of partition of join property; in otherwords, if at a general partition any part of the pro-perty wasleft joint, the widow of a deceased brother will not participate,notwithstanding the separation, but such undivided residuewill go exclusively to the brother.”

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Again, it is not pretended that on the death of the acquirer. ofseparate property, the separately acquired property falls intothe common stock, and passes like ancestral property. On thecontrary, it is admitted that if the acquirer leaves male issue,it will descend as separate property to that issue down to thethird generation. Although, therefore, where there is male issue,the family property and the separate property would notdescend to different persons, they would descend in a differentway, and. with different con- sequences; the sons taking theirfather’s share in the ancestral property subject to all the rightsof the co- parceners in that property, and his self-acquiredproperty free from those rights. The course of succession wouldnot be the same for the family and the separate estate; and itis clear, therefore, that, according to the Hindoo law, thereneed not be unity of laeirship.

C

D

E

C

D

E

But to look more closely into the Hindoo law. When propertybelonging in common to a united Hindoo family has beendivided, the divided shares go in the general course of descentof separate property. Why, it may well be asked, should notFthe same rule apply to property which from its first acquisitionhas always been separate We have seen from the passagealready quoted from Macnaghten’s “Hindu Law,” that wherea residue is left un-divided upon partition, what is dividedgoes as separate property; what is undivided follows theGfamily property; that which remains as it was, devolves in theold line; that which is changed and becomes separate, devolvesin the new line. In other words, the law of succession followsthe nature of the property and of the interest in it.

Again, there are principles on which the rule of successionaccording to the Hindoo law appears to depend: the first is H

ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY[KRISHNA MURARI, J.]

that which determines the right to offer the funeral oblation,and the degree in which the person making the offering issupposed to minister to the spiritual benefit of the deceased;the other is an assumed right of survivorship. Most of theauthorities rest the uncontested right of widows to inherit theestates of their husbands, dying separated from their kindred,on the first of these principles (1 Strange’s “Hindu Law,” p.135). But some ancient authorities also invoke the otherprinciple.

AB

Again, the theory which would restrict the preference of theco-parceners over the windows to partible property is notonly, as is shown above, founded upon an intelligibleprinciple, but reconciles the law of inheritance with the lawof partition. These laws, as is observed by Sir Thomas Strange,are so intimately connected that they may almost be said to beblended together; and it is surely not consistent with thisposition that co-parceners should take separate property bydescent, when they take no interest in it upon partition. Wemay further observe, that the view which we have thusindicated, of the Hindoo law is not only, as we have shown,most consistent with its principles, but is also most consistentwith convenience.”

C

D

E

54. On a complete reading of the judgment of Privy Council inextenso, the following legal principles are culled out:- A)That the General Course of descends of separate propertyaccording to the Hindu Law is not disputed it is admittedthat according to that law such property (separate property)descends to widow in default of male issue.

F

B)It is upon Respondent therefore to make out that the propertyherein question which was separately acquired does notdescends according to the general Course of Law.

C)According to the more correct opinion where there isundivided residue, it is not subject to ordinary rules of partitionGof joint property, in other words if it a general partition anypart of the property was left joint the widow of the deceasedbrother will not participate notwithstanding with separationbut such undivided residue will go exclusively to brother.

D)The law of succession follows the nature of property and H

Aof the interest in it.

E)The law of partition shows that as to the separately acquiredproperty of one member of a united family, the othermembers of the family have neither community of interestnor unity of possession.

BF)The foundation therefore of a right to take such propertyby survivorship fails and there are no grounds for postponingthe widow’s right any superior right of the co-parcenars inthe undivided property.

G)The Hindu Law is not only consistence with this principlebut is also most consistent with convenience.”C

55. Another case of the Privy Council is Sivagnana Tevar andAnr. Vs. Periasami & Ors.[9]. The aforesaid case, before the Privy Councilwas in continuity and of the consequence of the previous case KatamaNatchiar (Supra) but of a different branch of the family. In the saidDcase, it was observed as under :-

“Their Lordships then have come to the conclusion that, asbetween the descendants of Muttu Vaduga and DhoraiPandian, the palayapat was the separate property of the latter;that on the death of Dhorai Pandian, his right, if he had anyEleft undisposed of in the property, passed to his widow,notwithstanding the undivided status of the family; and thattherefore, the case was one to which the rule of successionaffirmed in the Shivagunga case (Supra) applies.”

56. The principles of law which can be deduced from reading ofFthe aforesaid judgment can be summarized as under:- “The law laid down in the case of Katama Natchiar Vs. SrimutRajah Mootoo Vijaya Raganadha Bodha Gooroo SawmyPeriya Odaya Taver, that succession in the case of Hindumale dying intestate is to be governed by inheritance ratherGthan survivorship, is reaffirmed.

In the absence of male member, the property devolves uponwidow and thereafter to daughter.”

9 1878 (1) ILR Madras 312H10 AIR 1976 ALL 195

57. A Full Bench of Allahabad High Court, in the case ofGhurpatari & Ors. Vs. Smt. Sampati & Ors.[10], while considering thequestion whether a custom under which daughters are excluded frominheriting the property of their father can by implication exclude thedaughters’ issues both males and females, also from such inheritance,made the following observations in respect of Right of Inheritance of awidow or a daughter of a male Hindu dying intestate :- “17. The rules relating to inheritance by widow and daughterwere enunciated in the ancient past by various sages andwere ultimately elaborated by Vijnyaneshwara in Mitakshara.We may quote from Colebrooke’s translation.”

Katyayan said “let the widow succeed to her husband’s wealth,provided she be chaste; and in default of her let the daughterinherit if married.” Brihaspati Said, “the wife is pronouncedsuccessor to the wealth of her husband; and in her defaultthe daughter; as a son so does the daughter of a man proceedfrom his several limbs, how then shall any other person takethe father’s wealth”? Vishnu laid down, “if a man leavesneither son, nor son’s son, nor wife, nor female issue, thedaughter’s son shall take his wealth, for in regard to theobsequies of ancestors, daughter’s son is considered as son’sson.” Manu likewise declared that “by a male child, who weredaughter whether formally appointed or not, shall producefrom a husband of an equal class, the maternal grandfatherbecomes the grand sire of son’s son, let that son give thefuneral oblation and possess the inheritance”. The right ofdaughter and daughter’s son to succeed to the property wasthus well recognized in the Mitakshara Law. The daughterranks fifth in the order of succession and the daughter’s sonranked sixth.”

58. Thereafter, the Court proceeded to consider the question ofcustom prevalent in a particular sect and whether they will have thesources of law with which we are not concerned in the case at hands.

59. The Hindu Law of Inheritance (Amendment) Act II of 1929(hereinafter called as ‘the Act of 1929), for the first time entitled thedaughter’s daughter, subject to a special family or local custom, to succeed 11 Mulla’s Principles of Hindu Law (14th Edition)

AB

C

D

E

F

G

H

Ato the property of a male Hindu governed by Mitakshara Law. Daughter’sdaughter then ranked 13[th]-B in the order of succession. The order ofsuccession to the estate of a Hindu dying interstate and governed byMitakshara Law are set out in Paragraph 43 of Mulla’s Principles ofHindu Law[11] as under :- B“The Sapindas succeeded in the following order :-

1-4 A son, grandson (son’s son) and great grandson (son’sson’s son) and (after 14[th] April, 1937) widow, predeceasedson’s widow, and predeceased son’s son’s widow.

5. Daughter.C

6. Daughter’s son

13. Father’s father

13. A Son’s daughter’s

13. B Daughter’s daughterD

60. In the case of Lal Singh & Ors. Vs. Roor Singh & Ors.[12], itwas held that daughters and daughters son have a preferential claim tothe non-ancestral property as against the collaterals.

61. In the case of Gopal Singh & Ors. vs. Ujagar Singh &EOrs.[13], it was observed by this Court that the daughter succeeds to theself- acquired property of her father in preference to collaterals. ThisCourt proceeded to rely upon the following observation in Rattigan’sDigest to ‘Customary Law’ :- “In regard to the acquired property of her father, the daughteris preferred to the collaterals.”F

62. Reference may also be made to the decision of Bombay HighCourt in Devidas & Ors. Vs. Vithabai & Anr.[14]. In the said case, oneArujna died in 1936, when succession opened and while determining theshares during partition daughter of one pre-deceased sons of Arjunanamely, Vithabai was held entitled for a share. The name of VithabaiGwas removed from revenue record. She filed a suit for declarationclaiming 1/3rd share with other reliefs. Trial Court dismissed the suit.

12 55 Punjab Law Reporter 168 at 17213 AIR 1954 SC 579H14 2008 (5) Mh.L.J. 296

The First Appellate Court held that plaintiff, Vithabai, being daughter ofZolu was a Class-I heir and thus, was entitled to 1/3rd share andaccordingly, reversed the decree. The matter was carried in secondappeal. The High Court while reversing the decree of Lower AppellateCourt and confirming that of the Trial Court observed as under :- “12. Zolu, when died in 1935 was joint with his father andbrothers. Therefore, his share in the coparcenery woulddevolve by survivorship and not by succession. Zolu did nothold any separate property admittedly and therefore, therewas no question of property passing over by succession. Thefollowing illustration to Section 24 in Mulla’s Hindu Law 19thEdition shall be enough to unfortunately negative the claimof the plaintiff. The case is squarely covered by thisillustration.

(1) A and B two Hindu brothers, governed by the MitaksharaSchool of Hindu Law, are members of a joint and undividedfamily. A dies leaving his brother B and a daughter. A’s sharein the joint family property will pass to his brother, the survivingcoparcener, and not to his daughter. However, if A and B wereseparate, A’s property would on his death pass to his daughteras his heir.

The plaintiff due to the above proposition of law was notentitled to succeed to the estate of her father. The persons onwhom the share of Zolu devolved were his brothers and fatherby survivorship. The share could not devolve on the daughterby succession since the plaintiff herself pleads that theproperty was joint and there was no partition. It was, therefore,not a separate estate of Zolu so that rule of succession couldbe applied. The property therefore passed over bysurvivorship in favour of brothers and father who werecoparceners.”

63. The 174[th] Law Commission in its report on ‘Property Rightsof Women’ while proposing reforms under the Hindu Law has observedas under :- “1.3.3 The Mitakshara law also recognising inheritance bysuccession but only to the property separately owned by anindividual, male or female. Females are included as heirs to A

BC

D

E

F

G

H

this kind of property by Mitakshara law. Before the HinduLaw of Inheritance (Amendment) Act 1929, the Bengal,Benares and Mithila sub-schools of Mitakshara recognisedonly five female relations as being entitled to inherit namely;-widow, daughter, mother, paternal grandmother, and paternalgreat-grand mother.

A

B

1. The Madras sub-schools recognised the heritable capacityof a larger number of females heirs that is of the son’sdaughter, daughter’s daughter and the sister as heirs wereexpressly named as heirs in Hindu Law of Inheritance(Amendment) Act,1929.

C

2. The son’s daughter and the daughter’s daughter rankedas Bandhus in Bombay and Madras. The Bombay Schoolwhich is most liberal to women, recognised a number of otherfemale heirs, including a half sister, father’s sister and womenmarried into the family such as step-mother, son’s widow,Dbrother’s widow and also many other females classified asBandhus.”

64. From the above discussions, it is clear that ancient text as alsothe Smritis, the Commentaries written by various renowned learnedpersons and even judicial pronouncements have recognized the rights ofEseveral female heirs, the wives and the daughter’s being the foremost ofthem.

65. The rights of women in the family to maintenance were inevery case very substantial rights and on whole, it would seem thatsome of the commentators erred in drawing adverse inferences fromthe vague references to women’s succession in the earlier Smritis. Theviews of the Mitakshara on the matter are unmistakable. Vijneshwaraalso nowhere endorses the view that women are incompetent to inherit.

F

Our Analysis

66. Right of a widow or daughter to inherit the self-acquiredproperty or share received in partition of a coparcenary property of aHindu male dying intestate is well recognized not only under the oldcustomary Hindu Law but also by various judicial pronouncements andthus, our answer to the question Nos. 1 and 2 are as under :- G

“If a property of a male Hindu dying intestate is a self- H

acquired property or obtained in partition of a co-parceneryor a family property, the same would devolve by inheritanceand not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preferenceto other collaterals.”

67. In the case at hands, since the property in question wasadmittedly the self-acquired property of Marappa Gounder despite thefamily being in state of jointness upon his death intestate, his sole survivingdaughter Kupayee Ammal, will inherit the same by inheritance and theproperty shall not devolve by survivorship.

68. Insofar as, question no. 3 is concerned under the old customaryHindu Law, there are contradictory opinions in respect of the order ofsuccession to be followed after the death of such a daughter inheritingthe property from his father. One school is of the view that such a daughterinherits a limited estate like a widow, and after her death would revertback to the heirs of the deceased male who would be entitled to inheritby survivorship. While other school of thought holds the opposite view.This conflict of opinion may not be relevant in the present case inasmuchas since Kupayee Ammal, daughter of Marappa Gounder, after inheritingthe suit property upon the death of Marappa Gounder, died afterenforcement of Hindu Succession Act, 1956 (hereinafter referred to as‘The Act of 1956’), which has amended and codified the Hindu Lawrelating to intestate succession among Hindus. The main scheme of thisAct is to establish complete equality between male and female withregard to property rights and the rights of the female were declaredabsolute, completely abolishing all notions of a limited estate. The Actbrought about changes in the law of succession among Hindus and gaverights which were till then unknown in relation to women’s property.The Act lays down a uniform and comprehensive system of inheritanceand applies, inter-alia, to persons governed by the Mitakshara andDayabhaga Schools and also to those governed previously by theMurumakkattayam, Aliyasantana and Nambudri Laws. The Act appliesto every person, who is a Hindu by religion in any of its forms includinga Virashaiva, a Lingayat or a follower of the Brahmo Pararthana orArya Samaj and even to any person who is Buddhist, Jain or Sikh byreligion excepting one who is Muslim, Christian, Parsi or Jew or Sikh byreligion. Section 14 of the Act of 1956 declares property of a female A

B

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D

E

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H

AHindu to be her absolute property, which reads as under:- “14. Property of a female Hindu to be her absolute property.-

(1) Any property possessed by a female Hindu, whetheracquired before or after the commencement of this Act, shallbe held by her as full owner thereof and not as a limitedBowner.

Explanation.—In this sub-section, “property” includes bothmovable and immovable property acquired by a female Hinduby inheritance or devise, or at a partition, or in lieu ofmaintenance or arrears of maintenance, or by gift from anyCperson, whether a relative or not, before, at or after hermarriage, or by her own skill or exertion, or by purchase orby prescription, or in any other manner whatsoever, and alsoany such property held by her as stridhana immediately beforethe commencement of this Act.

D

D(2) Nothing contained in sub-section (1) shall apply to anyproperty acquired by way of gift or under a will or any otherinstrument or under a decree or order of a civil court or underan award where the terms of the gift, will or other instrumentor the decree, order or award prescribe a restricted estate insuch property.”E

69. The legislative intent of enacting Section 14(I) of the Act wasto remedy the limitation of a Hindu woman who could not claim absoluteinterest in the properties inherited by her but only had a life interest inthe estate so inherited.

F70. Section 14 (I) converted all limited estates owned by womeninto absolute estates and the succession of these properties in the absenceof a will or testament would take place in consonance with Section 15 ofthe Hindu Succession Act, 1956, which reads as follows:- “Section -15. General rules of succession in the case of femaleHindus.—G

(1) The property of a female Hindu dying intestate shalldevolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the childrenof any pre-deceased son or daughter) and the husband; H

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1)- (a) any property inherited by a female Hindu from her fatheror mother shall devolve, in the absence of any son or daughterof the deceased (including the children of any pre-deceasedson or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirsof the father; and (b) any property inherited by a female Hindu from her husbandor from her father-in-law shall devolve, in the absence ofany son or daughter of the deceased (including the childrenof any pre-deceased son or daughter) not upon the other heirsreferred to in sub-section (1) in the order specified therein,but upon the heirs of the husband.”

Section 16 – Order of Succession and manner of distributionamong heirs of a female Hindu. –

The order of succession among the heirs referred to in Section15 shall be, and the distribution of the intestate’s propertyamong those heirs shall take place, according to the followingrules, namely:—

Rule 1.—Among the heirs specified in sub-section (1)of Section15, those in one entry shall be preferred to those in anysucceeding entry and those included in the same entry shalltake simultaneously.

Rule 2.—If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children aliveat the time of the intestate’s death, the children of such son ordaughter shall take between them the share which such sonor daughter would have taken if living at the intestate’s death.

Rule 3.—The devolution of the property of the intestate onthe heirs referred to in clauses (b), (d) and (e) of sub- section(1) and in sub-section (2) to Section 15 shall be in the same A

BC

D

E

F

G

H

Aorder and according to the same rules as would have appliedif the property had been the father’s or the mother’s or thehusband’s as the case may be, and such person had diedintestate in respect thereof immediately after the intestate’sdeath.”

B71. The scheme of sub-Section (1) of Section 15 goes to showthat property of Hindu females dying intestate is to devolve on her ownheirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15(1). Sub- Section (2) of Section 15 carves out exceptions only with regardto property acquired through inheritance and further, the exception isconfined to the property inherited by a Hindu female either from herCfather or mother, or from her husband, or from her father-in-law. Theexceptions carved out by sub-Section (2) shall operate only in the eventof the Hindu female dies without leaving any direct heirs, i.e., her son ordaughter or children of the pre-deceased son or daughter.

72. Thus, if a female Hindu dies intestate without leaving anyDissue, then the property inherited by her from her father or mother wouldgo to the heirs of her father whereas the property inherited from herhusband or father-in-law would go to the heirs of the husband. In case,a female Hindu dies leaving behind her husband or any issue, then Section15(1)(a) comes into operation and the properties left behind includingEthe properties which she inherited from her parents would devolvesimultaneously upon her husband and her issues as provided in Section15(1)(a) of the Act.

73. The basic aim of the legislature in enacting Section 15(2) is toensure that inherited property of a female Hindu dying issueless andFintestate, goes back to the source.

74. Section 15(1)(d) provides that failing all heirs of the femalespecified in Entries (a)-(c), but not until then, all her property howsoeveracquired will devolve upon the heirs of the father. The devolution uponthe heirs of the father shall be in the same order and according to theGsame rules as would have applied if the property had belonged to thefather and he had died intestate in respect thereof immediately after herdeath. In the present case the since the succession of the suit propertiesopened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughters being Class-I heirs of theirfather too shall be heirs and entitled to 1/5[th] share each in the suitproperties.

75. This Court while analysing the provisions of Sections 15 & 16of the Act in the case of State of Punjab Vs. Balwant Singh & Ors.[15],has held as under:- “7. Sub-section (1) of Section 15groups the heirs of a femaleintestate into five categories and they are specified underclauses (a) to (e). As per Sections 16 Rule 1 those in oneclause shall be preferred to those in the succeeding clausesand those included in the same clause shall takesimultaneously. Sub- section (2) of Section 15begins with anon-obstante clause providing that the order of succession isnot that prescribed under sub-section (1) of Section 15. Itcarves out two exceptions to the general order of succes-sion provided under sub-section (1). The first exception relatesto the property inherited by a female Hindu from her fatheror mother. That property shall devolve, in the absence of anyson or daughter of the deceased (including the children ofthe pre-deceased son or daughter), not upon the other heirsreferred to in sub-section (1) in the order specified therein,but upon the heirs of the father. The second exception is inrelation to the property inherited by a female Hindu from herhusband or from her father-in-law. That property shalldevolve, 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) inthe order specified thereunder but upon the heirs of thehusband.

8. The process of identifying the heirs of the intestate undersub-section (2) of Section 15has been explained in Bhajya v.Gopikabaiand Anr. [1978] 3 SCR 561. There this Courtobserved that the rule under which the property of the intestatewould devolve is regulated by Rule 3 of Section 16of the Act.Rule 3 of Section 16provides that “the devolution of theproperty of the intestate on the heirs referred to in clauses ABCDEFG

A(b), (d) and (e) of sub-section (1) and in sub-section (2) ofSection 15shall be in the same order and according to thesame rules as would have applied if the property had beenthe father’s or the mother’s or the husband’s as the case maybe, and such person had died intestate in respect thereofimmediately after the intestate’s death”.B

A

76. Again in the case of Bhagat Ram (dead) by LRs. Vs. TejaSingh (dead) by LRs.[16], a two-Judge Bench of this Court analysing theprovisions of Sections 14, 15 and 16 of the Act reiterating the view takenin the State of Punjab Vs. Balwant Singh & Ors.(Supra), observed asunder :-C

“The source from which she inherits the property is alwaysimportant and that would govern the situation. Otherwisepersons who are not even remotely related to the person whooriginally held the property would acquire rights to inheritthat property. That would defeat the intent and purpose ofDsub-Section 2 of Section 15, which gives a special pattern ofsuccession. “

77. Applying the above settled legal proposition to the facts of thecase at hands, since the succession of the suit properties opened in 1967upon death of Kupayee Ammal, the 1956 Act shall apply and therebyERamasamy Gounder’s daughter’s being Class-I heirs of their father tooshall also be heirs and entitled to 1/5th Share in each of the suit properties.

78. Unfortunately, neither the Trial Court nor the High Courtadverted itself to the settled legal propositions which are squarelyapplicable in the facts and circumstances of the case.

F

79. Thus, the impugned judgment and decree dated 01.03.1994passed by the Trial Court and confirmed by the High Court vide judgmentand order dated 21.01.2009 are not liable to be sustained and are herebyset aside.

80. The appeal, accordingly, stands allowed and the suit standsGdecreed.

81. Let a preliminary decree be drawn accordingly. It shall beopen to the parties to invoke the jurisdiction of appropriate Court forpreparation of final decree in accordance with law.

H82. However, in the facts and circumstances of the case, we donot make any order as to costs.