SMT. RADHIKA v. AGHNU RAM MAHTO

SEPTEMBER 7, 1994

B

Hindu Law

Hindu Succession Act 1956:·Sections 15 and 16.

Hindu fem ale inheriting property of great grand-father through mother-Dying intestate-Husband claiming a share in the estate-Held hus- band stood excluded from succession to such property.

The appellant's mother inherited the suit properties from her maternal grand-father. Later she died intestate. The claim of the respondent (father of the appellant) for half of the share as Class-I heir of his wife (appellant's mother) was rejected by the Trial Court. On appeal the District Judge held that the appellant and the respondent are class·I heirs and decreed the suit in equal .moiety. The appellant's second appeal was dismissed by the High Court against which appeal was filed in this court.

Allowing the appeal and setting aside the decree of the High Court, this Court

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A CIVIL APPELLATE JURISDICTION: Civil Appeal No.2280 of 1984.

From the Judgment and Order dated 9.11.83 of the Patna High Court in S.A. No. 17 of 1982 (R). ... B Mrs. Rachna Gupta for Mrs. Rani Chhabra for the Appellant.

M.P. Jha for the Respondent. -._., The following Order of the Court delivered :

C The appellant is the daughter of the respondent though second wife. Admittedly, her mother inherited the properties of her maternal . grandfather. The appellant is the only issue to her mother. When her mother died intestate, the respondent-husband filed the partition suit No. 39 of 1979 in the court of Special Sub-Judge, Ranchi claiming half the share as class-1 heir of his wife. The Trial Court dismissed the Suit ori the ground that during the life time of the mother of the appellant, she had bequeathed the properties to the appellant under a gift deed and that therefore, the decree cannot be granted as she died after she was divested of her possession. On appeal, the District Judge reversed the decree and held that the gift is not valid and that the appellant and respondent are class-1 heirs and decreed the suit for partition in equal moiety. In Second Appeal No. 17/82, by Judgment and Decree dated 9.11.1983 the High Court dismissed same. Thus this appeal by special leave.

The facts are not in dispute, namely, the mother of the appellant inherited the suit property from her father. Section 15 of the Hindu F Succession Act, 1956 regulates the succession to the estate of female Hindus. Sub-Section (1) provides that "the property of a female Hindu dying inestate shall devolve according to the rules set out in Section 16----

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

(b) secondly, upon the heirs of the husband; and. so on in the order specified.

But sub-section (2) with non-obstante clause excludes the applicability of H Sub-section (1). Clause (a) of Sub-Section (2) provides that;

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"(a) any property inherited by a female Hindu from her father or A mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son of daughter), not upon the other heirs referred to in sub-section (1) in .the order specified therein, but upon the heirs of the father; "

(Cause (b) is not relevant, hence omitted). B A reading thereto clearly indicates that for the property inherited by a female Hindu from her father or mother, in other words female's paternal side, in he absence of her son, daughter or children of the pre-deceased son or daughter, the succession opens to the heirs of the father or Di.other and not to class-1 heirs in the order specified in sub-section (1) of Section C 15 and in the order of Section 16. In other words, the children and the children of the pre-deceased son or daughter or the Hindu female alone are entitled to get such property. Thus, husband stands excluded from the succession to the property inherited by female Hindu from her father's side. Accordingly, we hold that since the mother of the appellant had inherited the suit property from the grandfather, her husband-respondent stood excluded from intestate succession to the estate left by her. The courts below obviously had overlooked the provision in Section 15, in particular sub-section (2) thereof, and illegally granted a decree.

The appeal is accordingly allowed. The decree of the High Court in the second Appeal and that of the appellate court in the First Appeal are set aside. Though for different reasons, the decree of the trial court stands confirmed, but in the circumstances, without costs.

T.N.A. Appeal allowed.