In the present case, the entire property belonged to ‘X’ who had two sons. One elder son was Marappa and the other son was Ramasamy. The elder son of X had one daughter who was issue less and once she died property devolved on legal heirs of Ramasamy, who pre-deceseased his brother.
The suit for partition was filed by one of the daughter of Ramasamy. Ramasamy had one son and four daughters, one of the daughter amongst these was not alive. The petitioner is a daughter who is claiming 1/5th share in the suit property on the basis that the plaintiff and defendants are sisters and brothers. All the five of them being the children of Ramasamy Gounder, all the five children of are heirs in equal heirs and entitled to 1/5th share each. The year of this case is also important in understanding it.
Whether self-acquired property of her father in the absence of any other legal heir would devolve to the daughter by inheritance after the father died without a will, or to the man’s brother by survivorship.
Different schools of Hindu Law from various scholars: The commentaries by various learned scholars have given rise to different schools of Hindu Law- like Daya Bhaga in Bengal, Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India. The Mitakshara school of law is one of the most important schools of law having a very vide jurisdiction. It applies to majority of India with slight variations with the fundamental principles being the same. These slight variations formed various sub-schools, namely, Banaras School, Mithila School, Maharashtra/Bombay School, Dravida/ Madras School. The Mitakshara is supposed to be the leading authority in the school of Benaras.
Exception of Bengal: The Mitakshara has always been considered as the main authority for all the schools of law, with the sole exception of that of Bengal, which is mostly covered by another school known as Daya Bhaga.
Precedent of Pranjivandas Case: The judgment also refers to a case of Pranjivandas Tulsidas Vs. Dev Kuvarbai, 1 Bomb. H.C., B. 131, wherein a Hindu owning separate property died without a male issue, leaving behind – a widow, four daughter and a brother and male issues of other deceased brothers. The Court observed that the widow was entitled to a life estate in the property and subject to her interest the property would devolve to the daughters absolutely in preference to the brother and the issue of the deceased brothers.
Madras School of Law: One of the sub-schools of Mitakshara- the Madras school of law tends to cover most of the southern part of India. It exercises its authority under Mitakshara law school. The Mitakshara school derives majorly from the running commentaries of Smritis written by ‘Yajnavalkya’. Other important sources governing the Mitakshara school are ‘Vyavastha Chandrika’ and most importantly Smriti Chandrika.
Mulla’ in his book Hindu Law (22nd Edition): While discussing the law prior to the Hindu Succession Act, 1956, Mulla says that there are two systems of inheritance amongst the Hindus in India, namely, Mitakshara system and Dayabhaga system. 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 under Dayabhaga School, there is no such definite guiding principle under the Mitakshara School.
Rule of survivorship vs. rules of succession: Sometimes consanguinity, and at the other times, religious efficacy has been regarded as the guiding principle. According to ‘Mulla’, Mitakshara recognises two modes of devolution of property, namely, survivorship and succession. The rules of survivorship apply to joint family property, and the rules of succession apply to property held in absolute severalty by the last owner.
In determining the mode in which the property of a Hindu male, governed by Mitakshara Law, devolves on his death, the following propositions are to be noted :-
(1) Coparcenary property: Where the deceased was, at the time of the death, a member of joint and undivided family, technically called coparcenary, his undivided interest in the coparcenary property devolves on his coparceners by survivorship.
(2) (i) Self acquired property of deceased: Even if the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession according to the order given in § 43, and not to his coparceners;
(ii) If the deceased was at the time of his death, the sole surviving member of a coparcenary property, the whole of his property, including the coparcenary property, will pass to his heirs by succession according to the order given in;
(iii) If the deceased was separate at the time of his death from his coparceners, the whole of his property, however acquired, will pass to his heirs by succession according to the order given in § 43;
(3) If the deceased was re-united at the time of his death, his property will pass to his heirs by succession according to the Rule laid down in §60.
According to ‘Mulla’ under Mitakshara Law, the right to inherit arises from propinquity, i.e., proximity of relationship. Mitakshara divided blood relations into three classes, namely –
(a) Gotra-sapindas, i.e., Sapindas belonging to the same gotra or family as the deceased from 1st-7th degree;
(b) Samanodaka, i.e., persons belonging to the same gotra or family as the deceased from 8th -14th degree; and
(c) Bhinna gotra sapindas, i.e., Sapindas belonging to a different gotra or family from the deceased.
‘Gotra Sapindas’ and ‘Samanodaka’ are persons connected to the deceased by an unbroken line of male descendants i.e., all agantes; and Bhinna gotra sapindas are persons connected to the deceased through a female i.e, cognates such as a sister’s son. ‘Bhinna gotra sapindas’ are also known as ‘Bandhus’ in Mitakshara.
These classifications 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 question considering its succession opened before the commencement of the Hindu Succession Act, 1956.
The Gotra Sapindas of a person, according to Mitakshara are :-
(i) His six male descendants in the male line; i.e., his son, son’s son’s son, etc.
(ii) His six male ascendants in the male line, the wives of the first three of them, and probably also of the next three; ie, his father, father’s father, father’s father’s father, 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 each of his male ascendants; i.e., to X6 in the line of F1, being his brother, brother’s son, brother’s son’s son, etc; to X6 in the 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 X6 in the line of F5′, and to x6 in the line of F6.
(iv) His wife, daughter, and daughter’s son.
The Sapinda relationship extends to seven degrees reckoned from and inclusive of the deceased and six degrees, if you exclude the deceased. The wife becomes a sapinda of the husband on marriage. The daughter’s son is not a gotraja sapinda, he is a bandhu because he is related to the deceased through a female. However, for the purpose of succession, he is ranked with gotraja sapindas.
The Hindu Law of Inheritance (Amendment) Act, 1929: It was the earliest Statutory legislation which brought the Hindu females into the scheme of inheritance. The 1929 Act introduced certain female statutory heirs which were already recognized by the Madras School, i.e., the son’s daughter, daughter’s daughter, sister and sister’s son in the order so specified, without making any modifications in the fundamental concepts underlying the textual Hindu Law relating to inheritance; only difference being that while before the Act, they succeeded as bandhus, under the Act, they inherited as ‘gotra sapindas’.
The Mitakshara law also recognises inheritance by succession but only to the property separately owned by an individual, male or female. Females are included 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 Mitakshara recognised only five female relations as being entitled to inherit namely – widow, daughter, mother paternal grandmother and paternal great-grand mother. The Madras subschool recognized the heritable capacity of a larger number of females heirs that is of the son’s daughter, daughter’s daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act, 1929. The son’s daughter and the daughter’s daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognized a number of other female heirs, including a half -sister, father’s sister and women married into the family such as stepmother, son’s widow, brother’s widow and also many other females classified as bandhus. From the above discussions, it is abundantly clear that a daughter was in fact capable of inheriting the father’s separate estate.
Privy Council has delivered some notable judgments on the issue arising for adjudication in the case at hands. Reference may be made to the case of Katama Natchiar Vs. Srimut Rajah Mootoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Taver (8 (1863) 9 MIA 539). In the judgment of Privy Council in extenso, the following legal principles are culled out:-
A) That the General Course of descends of separate property according to the Hindu Law is not disputed it is admitted that according to that law such property (separate property) descends to widow in default of male issue.
B) It is upon Respondent therefore to make out that the property herein question which was separately acquired does not descends according to the general Course of Law.
C) According to the more correct opinion where there is undivided residue, it is not subject to ordinary rules of partition of joint property, in other words if it a general partition any part of the property was left joint the widow of the deceased brother will not participate notwithstanding with separation but such undivided residue will go exclusively to brother.
D) The law of succession follows the nature of property and of the interest in it.
E) The law of partition shows that as to the separately acquired property of one member of a united family, the other members of the family have neither community of interest nor unity of possession.
F) The foundation therefore of a right to take such property by survivorship fails and there are no grounds for postponing the widow’s right any superior right of the co-parcenars in the undivided property.
G) The Hindu Law is not only consistence with this principle but is also most consistent with convenience.”
Amendment of 1929 gave daughter daughter’s entitlement: The Hindu Law of Inheritance (Amendment) Act II of 1929 (hereinafter called as ‘the Act of 1929), for the first time entitled the daughter’s daughter, subject to a special family or local custom, to succeed to the property of a male Hindu governed by Mitakshara Law. Daughter’s daughter then ranked 13th-B in the order of succession. The order of succession to the estate of a Hindu dying interstate and governed by Mitakshara Law are set out in Paragraph 43 of Mulla’s Principles of Hindu Law11 as under :-
“The Sapindas succeeded in the following order :-
- 1-4 A son, grandson (son’s son) and great grandson (son’s son’s son) and (after 14th April, 1937) widow, predeceased son’s widow, and predeceased son’sson’s widow.
5. Daughter.
6. Daughter’s son
13. Father’s father
13.A Son’s daughter’s
13.B. Daughter’s daughter
Ancient text recognized rights of women: From the above discussions, it is clear that ancient text as also the Smritis, the Commentaries written by various renowned learned persons and even judicial pronouncements have recognized the rights of several female heirs, the wives and the daughter’s being the foremost of them.
Nowhere it is mentioned women are incompetent to inherit: The rights of women in the family to maintenance were in every case very substantial rights and on whole, it would seem that some of the commentators erred in drawing adverse inferences from the vague references to women’s succession in the earlier Smritis. The views of the Mitakshara on the matter are unmistakable. Vijneshwara also nowhere endorses the view that women are incompetent to inherit.
Right of a widow or daughter to inherit the self-acquired property or share received in partition of a coparcenary property of a Hindu male dying intestate is well recognized: Not only under the old customary Hindu Law but also by various judicial pronouncements and thus:-
- “If a property of a male Hindu dying intestate is a self acquired property or obtained in partition of a co-parcenery or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals.”
Section 14 (I) converted limited estates into absolute estates: The legislative intent of enacting Section 14(I) of the Act was to remedy the limitation of a Hindu woman who could not claim absolute interest in the properties inherited by her but only had a life interest in the estate so inherited. Section 14 (I) converted all limited estates owned by women into absolute estates and the succession of these properties in the absence of a will or testament would take place in consonance with Section 15 of the Hindu Succession Act, 1956.
Section 15 (1): The scheme of Section 15 (1) goes to show that property of Hindu females dying intestate is to devolve on her own heirs, 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 regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.
Issueless Female: Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband 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 Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.
The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless 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 acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death.
The above sections cover Hindu Succession Act.
This Court while analysing the provisions of Sections 15 & 16 of the Act in the case of State of Punjab Vs. Balwant Singh & Ors. 1992 Supp. (3) SCC 108, has held as under:-
The process of identifying the heirs of the intestate under sub-section (2) of Section 15 has been explained in Bhajya v. Gopikabai and Anr. [1978] 3 SCR 561. There this Court observed that the rule under which the property of the intestate would devolve is regulated by Rule 3 of Section 16 of the Act. Rule 3 of Section 16 provides that “the devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death”.
ARUNACHALA GOUNDER (DEAD) BY LRS. VS. PONNUSAMY AND ORS; [Civil Appeal No. 6659 OF 2011]
In the present case the since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall be heirs and entitled to 1/5th share each in the suit properties.
In the case at hands, since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.
HON’BLE MR. JUSTICE S. ABDUL NAZEER
Judge, Supreme Court of India
HON’BLE MR. JUSTICE KRISHNA MURARI
Judge, Supreme Court of India
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