Bombay High Court

Ms Anita Chandrakant Kodkany vs Dr. Bakhatwar Dastur & 2 Ors on 21 April, 2017

Bench: K.R. Sriram

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

            ORDINARY ORIGINAL CIVIL JURISDICTION

                              SUIT NO.34 OF 2012
                                    WITH
                       NOTICE OF MOTION NO.259 OF 2012

      Ms.Anita Chandrakant Kodkany
      of Pune, Hindu, Indian Inhabitant
      residing at P4/803,Oxford Village
      Wanowrie, Pune-411 040.                                  ..Plaintiff.

                      V/s.

      1.     Dr.Bakhtawar Dastur of
             Mumbai, Parsi Zoroastrian,
             Indian Inhabitant, Residing at
             Linden House, M.Bharucha Marg,
             Appollo Bunder, Mumbai 400 001.

      2.     Mrs.Rita Mahesah Swamy of
             Mumbai, Hindu, Indian Inhabitant,
             Residing at B/501, Saidhan Infinity,
             16th Road, Khar (W), Mumbai-400 049.

      3.     Ms.Naznin Phiroze Chaina of Mumbai,
             Parsi Zoroastrian, Indian Inhabitant,
             Residing at 5, Harbour View, 1st Floor,
             Ram Sheth Naik Cross Lane,
             Mazgaon, Mumbai-400 010.                          ..Defendants.

      Mr.Gurumurthy V. Iyer for the Plaintiff.

      Mr.Vipul Bilve i/b. Mulla & Mulla and C. B. & C for Defendant
      No.1.




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Mr.Karl Tamboly i/b. M/s. Jayakars for Defendant No.3.


                                 Coram : K.R.SHRIRAM, J.

Date : 21 APRIL, 2017

ORAL JUDGMENT

Both counsel for the Plaintiff and Defendant No.3

submit that since only interpretation of Section 55 of the Indian

Succession Act, 1925 ('the Act' for brevity) would answer the issues

framed by this Court, there was no need to lead any evidence in the

matter. Counsel submitted that the entitlement is agreed between

the Plaintiff, Defendant Nos.2 and Defendant No.3 but what is the

proportion in which they are entitled to, was the only point to be

decided and the Court after hearing the parties can go ahead and pass

a preliminary decree. The issue therefore is :

"Whether the lineal descendants of deceased brothers and

sisters shall, in certain events, succeed to the property of the

intestate, per stirpes or per capital ?"

2. Mr.Ardeshir Choksey had six children, two sons and four

daughters. Both sons, viz. Mr.Edulji Ardeshir Choksey and Mr.Ratan

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Ardeshir Choksey were unmarried and died intestate. Two of the

daughters Ms.Naju Ardeshir Choksey and Ms.Sheroo Ardeshir

Choksey were also unmarried and died intestate. Only two

daughters, namely Mrs.Nergish Chandrakant Kodknany and Mrs.

Bachoo Phiroze Chaina got married. Nergish had two daughters

Ms.Anita Chandrakant Kodknany and Mrs.Rita Mahesh Swamy and

Bachoo had one daughter Mrs.Naznin M. Meherji. Anita is the

Plaintiff, Rita is Defendant No.2 and Naznin Meherji is Defendant

No.3. The Plaintiff and Defendant No.2 are together and Defendant

No.3 is the main contesting Defendant. Defendant No.1, not

belonging to the family, is the Administrator of the estate. Family

tree of Ardeshir Chowksey is as under :-

3. The suit has been filed for administration of the estate of

Edulji Ardeshir Choksey, Sheroo Ardeshir Choksey and Ratan

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Ardeshir Choksey who died instate (all of whom are collectively

referred to as the deceased). It is the case of the Plaintiff that it be

declared that the Plaintiff, Defendant No.2 and Defendant No.3

have equal shares in the estate of the deceased.

4. It is the case of Defendant No.3 that 50% of the estate of

the deceased should be distributed between the Plaintiff and

Defendant No.2 (i.e. 25% each) and balance 50% to go to

Defendant No.3. According to Defendant No.3, if Nergish, mother

of the Plaintiff and Defendant No.2 and Bachoo mother of

Defendant No.3, had been alive, they would have been entitled to

50% share each to the estate of the deceased. Thus, the Plaintiff and

second Defendant are collectively entitled to 50% share of the estate

of the deceased and the third Defendant is entitled to 50% of the

estate of the deceased and not equally. Defendant No.3 states that

the Plaintiff and second Defendant will not be entitled to 1/3 rd share

of the estate as claimed in the suit. The dispute, therefore, is whether

the Plaintiff and Defendant No.2 together to get 50% or together get

66.66%. The value of 16.66% is rather substantial and that is the

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cause for disagreement.

5. Mr.Tamboly appearing for Defendant No.3 also relied

upon the judgment of this Court in the matter of 1Hirjibhai Cursetji

Bhandupwala V/s. Barjorji Sorabji Ashburner & Ors. He submitted

that the distribution should be per stirpes and not per capita. Mr.

Tamboly also relied upon the definition of Propinquity from

Wharton's Law Lexicon, Sixteenth Edition.

6. Section 55 of the Indian Succession Act, 1925 reads as

under:-

"55. Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a widow of any lineal descendant. -- When a Parsi dies leaving neither lineal descendants nor a widow or widower nor a widow or widower of any lineal descendant, his or her next-of-kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares."

Part II of Schedule II reads as under:-

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        "(1) Father and mother.

(2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.

(3) Paternal and maternal grandparents.

(4) Children of paternal and maternal grandparents and the lineal descendants of such of them as have predeceased the intestate.

(5) Paternal and maternal grandparents' parents.

(6) Paternal and maternal [grandparents' parents' children] and the lineal descendants of such of them as have predeceased the intestate.

(7) Half brothers and sisters and the lineal descendants of such of them as have predeceased the intestate.

(8) Widows or brothers or half brothers and widowers of sisters or half sisters.

(9) Parental or maternal grandparents children's widows or widowers.

(10) Widows or widowers of deceased lineal descendants of the intestate who have not married again before the death of the intestate."

7. Admittedly, the Plaintiff and Defendant No.2 and

Defendant No.3 stand in the second category of Part II i.e. lineal

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descendants of such of the brothers and sisters. It should be noted

that both Nergish and Bachoo predeceased Edulji and Ratan. Both

Nergish and Bachoo survived sheroo.

8. Mr.Iyer appearing for the Plaintiff submitted that under

section 55 of the Act, it is provided that when the next of the kin

come under the same degree of propinquity whether they are male or

female shall receive equal share. Mr.Iyer submitted that the Plaintiff,

Defendant No.2 and Defendant No.3 shall receive equal share.

Mr.Iyer also submitted that the citation of Hirjibai Bhandupwala

(supra) on facts can be distinguished. Mr.Iyer submitted that in

Hirjibai Bhandupwala (supra), the next of kin were not in the same

degree of propinquity which is so in this case and, therefore, the

judgment is not applicable.

9. Having heard the counsel and having gone through the

pleadings, in my view, if I accept the submission of the Plaintiff, it

would result in a rather anomalous situation. In this case, the

Plaintiff's mother Nergish had only two children. If Nergish had, say

six children, it would mean that the estate will have to be distributed

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into seven parts with Defendant No.3 and what the Defendant No.3

would get will be a small fraction of what she would have got had

their mothers been alive. It would also mean, in the case of estate of

Edulji and Ratan, Nergish and Bachoo having predeceased them, the

Plaintiff, Defendant No.2 and Defendant No.3 will take equally, i.e.

1/3rd each and in case of estate of Sheroo, Nergish and Bachoo

having survived her and the estate having vested upon them, the

Plaintiff and Defendant No.2 would get 50% and Defendant No.3

would get 50%.

10. In my view, the parties should take per stirpes and not

per capita. Suppose Nergish, mother of the Plaintiff and Defendant

No.2 had expired a day before the deceased had expired, it would

mean her children will get more and Defendant No.3 will have to

lose out because fate made her the only child and mother Bachoo to

be alive longer. If the two sisters Nergish and Bachoo were alive,

then they would have taken equally the estate of the deceased. If the

division is to be per capita, the result of one sister's death a day

before the death of the intestate is that each of the survivors who

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would have lived a day longer would have taken 50% each of the

estate, one lineal descendant who would have got 50% now would

get only 33.33%.

11. If the division is per stirpes, the result of one sister's

death a day before the intestate would make no difference to

anybody. Each would still get 50%. Each sister's family by reason

of that sister's death at that particular time is placed on an equal

footing with each surviving sister of the intestate. If we accept what

Mr.Iyer submits then by reason of Nergish's death, her children i.e.

the Plaintiff and Defendant No.2 will get more than what they

would have got, had Nergish been alive. I do not think that such a

method of division could have been intended by the Legislature. I

think the gift to lineal descendants is substitutional, in the sense that

they take nothing if the head of the branch of their family is living,

whereas, if he or she is dead, they stand in his or her place and take

the share which he or she would have taken. The object is to provide

for a branch of the family which has lost its natural head, not to

diminish the provision for the heads of other branches, not to give a

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larger branch a greater portion than the smaller one merely because

its heads have died. In a per stirpes distribution, a group represents a

deceased ancestor. The group takes the proportional share to which

the deceased ancestor would have been entitled. This is more

consistent with the context and probable object of the legislatures.

It would be useful to reproduce the following from Hirjibhai

Bhandupwala (supra):-

"The question is, whether the division is to be per stirpes or per capita. Now, in considering art. 2, the most obvious point is that the lineal descendants entitled are exclusively those of brothers and sisters who have predeceased the intestate. Lineal descendants of surviving brothers or sisters are entirely excluded. Suppose the case of an intestate having four brothers, all of whom survive him having numerous children and grand-children. The brothers take the whole estate in equal shares; none of their children or grand-children take anything. The Legislature thought that the families would be sufficiently provided for by giving the estate to their heads, the brothers. Now suppose that, instead of all four brothers surviving, one of them dies a day before the intestate, leaving five sons and five grandsons. It is common ground that in such a case, the three surviving brother's family would not exclude, but would share with the deceased brother's family. If the division is to be per capita, the (9 9) result of the one brother's death a day before the intestate's is that each of the surviving brothers, who in the event of the deceased having lived a day longer, would have taken one-fourth of the estate, now gets only a one-thirteenth share for himself and his family - a family which is as closely connected with the intestate as that of the deceased brother which may be far more numerous, but

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which is absolutely excluded from the division. Each member of the deceased brother's family - son, grandson, or great- grandson - by reason of that brother's death at that particular time is placed on an equal footing with each surviving brother of the intestate, and on a superior footing to every member of the surviving brother's families. If each of the families of the surviving brothers is larger than that of the deceased brother, then the practical effect of that brother predeceasing the intestate may be to give the smallest family a much grater portion of the estate than is taken by the three larger families put together. These results are still more singular if the predeceased, instead of being a brother was a sister of the intestate, who, if she had survived him, would have taken only half as much as each of her brothers, that is, one-seventh of the estate. By reason of her death a day before the intestate, a division per capita distributes among her branch of the family ten-thirteenths of the whole, each male member, near or remote, sharing equally with her brothers. These consequences would necessarily flow from a division of the estate per capita. Other results equally anomalous were pointed out by Mr.Scott and Mr.Lowndes. I do not think that such a method of division can have been intended by the Legislature. I think that the gift to lineal descendants is substitutional, in the sense that they take nothing if the head of their branch of the family is living, whereas, if he is dead, they stand in his place and take the share which he would have taken. The object is to provide for a branch of the family which has lost its natural head, not to diminish the provision for the heads of other branches, nor to give a smaller branch a greater portion than a larger one merely because its head has predeceased the intestate. I think, therefore, that in distributing the estate among "brothers nd sisters and the lineal descendants or such of them as shall have preased the intestate (920) the primary division must be as per stirpes. If there are surviving brothers, and lineal descendants of a predeceased brother, then each surviving brother will take equal shares with the lineal descendants collectively. If all the brothers are dead then the share which each would have taken had he survived, will be taken by his lineal descendants. If, in

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either case, the predeceased was a sister, her lineal descendants will take her half share only. I do not think that this construction does violence to the language of S.7 and art. 2. The Act provides that the lineal descendants of deceased brothers and sisters shall, in certain events, succeed to the property of the intestate, and succession per stirpes is as consistent with such terms as succession per capita, and is, I think more consistent with the context and with the probable objects of the Legislatures."

12. Moreover, propinquity is defined in Wharton's Law

Lexicon as "kindred, parentage". If we use the word parentage in

section 55, instead of the word propinquity, it would read "...

property shall be so distributed that each male and female standing

in the same degree of 'parentage' (propinquity) shall receive equal

shares. This also confirms that the object of the legislature was

distribution to be per stirpes and not per capita. The issue framed

above is answered accordingly.

13. In the circumstances, there shall be a preliminary decree

as under :

50% of the state of the deceased shall go together to the

Plaintiff and Defendant No.2 and 50% shall go to Defendant No.3.