Rattan Prakash vs Smt. Bela Sihare
1996 Latest Caselaw 348 Del

ORDER

1. In this revision petition, a short question which needs consideration is whether a "son" includes a "step-son" within the meaning of Section 15 of Hindu Succession Act.

2. First, the facts which led to the present revision petition. Father of the plaintiff/ petitioner Lachhman Prasad married twice during his lifetime. The petitioner and his brother Mahender Prakash were born out of marriage of Lachhman Prasad with Smt. Kala Wati. After the death of Smt. Kala Wati, Shri Lachhman Prasad married Smt. Hasmukh Wati. Out of the wedlock of Lachhman Prasad and Smt. Hasmukh Wati the second wife, one daughter namely Bela, the respondent was born. Shri Lachhman Prasad died on 1st November, 1951 leaving behind Smt. Hasmukh Wati as his widow, the petitioner Shri Rattan Prakash and his brother Shri Mahender Prakash and his step-sister Bela. After the death of Lachhman Prasad, the property left by him was partitioned amongst Smt. Hasmukh Wati, Rattan Prakash, and Mahender Prakash and each was given one-

third share by virtue of an award given by Shri Bhagwan Dass, Advocate. In the award, provision for maintenance and education etc. of the respondent Bela, minor daughter of the deceased Lachhman Prasad was also made by allotting 900 shares of DCM to her. Smt. Hasmukh Wati was awarded life interest in her one-third share under the award made in the year 1952, prior to coming into force of the Hindu Succession Act. Smt. Hasmukh Wati filed a suit for partition and challenged the said award and in RFA 69-D of 1964, a Division Bench of this Court vide order dated 14th May 1974dec!ared Smt. Hasmukh Wati as sole and absolute owner of the share awarded to her, under the said award.

3. A suit for partition was filed by Smt. Hasmukh Wati in respect of premises in dispute and the suit was still pending and during the pendency of the suit Smt. Hasmukh Wati died. On her death, Smt. Bela Sihare, daughter of the deceased Hasmukh Wati filed an application under Order 22 Rule 3 CPC claiming that the right to suit survived in her favour after the death of Smt. Hasmukh Wati. The claim of the petitioner was that he became the owner of the property as she had died intestate and as such he became entitled to his share out of the property of his deceased step-mother for the property was inherited from the father of the petitioner. According to the petitioner he performed even last rites of the deceased Hasmukh Wati just like a son. As such, the petitioner, his brother Mahender Prakash as well as Smt. Bela Sihare, step sister of the petitioner became owners to the extent of one-third share. Learned Additional District Judge relied upon two judgments and substituted the respondent in place of Smt. Hasmukh Wati.

4. Feeling aggrieved by the said order, the present revision petition has been filed.

5. The facts mentioned above do not appear to be disputed as is evident from pleading of the parties before (he learned trial court and they led to the formation of the above question of law.

6. Section 15 of the Hindu Succession Act (hereinafter called the Act) reads as under:

"15(1) The property of a female Hindu dying intestate shall devolve according to the rule set out in Section 16,- -

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

(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 father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

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

7. Section 16 of the Act that determines the order of succession and manner of distribution among heirs of Hindu, reads as under:

"16.(I) The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely:--

Rule 1. -- Among the heirs specified in subsection (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.

Rule 2. -- If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.

Rule 3. -- 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 subsection (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."

8. In view of the plain language of Section 15 read with Section 16 of the Act, it is apparent that the "step-son" would not be included in Section 15(l)(a) within the term "sons". He could only be an heir of her husband and he would be covered by clause (b) of Section 15(1). And, in view of the rule set out in Section 16 of the Act, entry in clause (a) would take precedence over relations included in the clause (b) of Section 15(1) and subsequent Clauses. This controversy has been set at rest by the Supreme Court in Lachhman Singh v. Kirpa Singh, . After considering a contrary view taken by Allahabad High Court in 1968 All LJ 484, Supreme Court has specifically distinguished between the words "son" and "step-son" by observing as under:

"The words 'son' and 'step-son' are not defined in the Act. According to Collins English Dictionary a son means a son of one's husband or wife by a former union. Under the Act a son of a female by her first marriage will not succeed to the estate of her second husband on his dying intestate. In the case of a woman it is natural that a step-son, that is, the son of her husband by his another wife is a step away from the son who has come out of her own womb."

9. Supreme Court further observed about succession as under:

"But under the Act a step-son of a female dying intestate is an heir and that is so because the family headed by a male is considered as a social unit. If a step-son does not fall within the scope of the expression sons in clause (a) of S. 15(1) of the Act, he is sure to fall under clause (b) (hereof being an heir of the husband. The word sons in clause (a) of S. 15(1) of the Act includes (i) sons born out of the womb of a female by the same husband or by different husbands including illegitimate sons too in view of S.3(j) of the Act and (ii) adopted sons who are deemed to be sons for purposes of inheritance. Children of any predeceased son or adopted son also fall within the meaning of the expression 'sons'. If Parliament had felt that the word 'sons' should include 'step-sons' also it would have said so in express terms. We should remember that under the Hindu law as it stood prior to the coming into force of the Act, a step-son, i.e., a son of the husband of a female by another wife did not simultaneously succeed to the stridhana of the female on her dying intestate. In that case the son born out of her womb had precedence over a step-son. Parliament would have made express provision in the Act if it intended that there should be such a radical departure from the past. We are of the view that, the word 'sons' in clause (a) of S. 15(1) of the Act does not include 'step-sons' and that step-sons fall in the category of the heirs of the husband referred to in clause (b) thereof."

10. The learned trial judge also relied upon two judgments -- Munda v. Premnath, AIR 1980 Calcutta234 (sic) and Ved Prakash v. (sic) AIR 1974 Punjab & Haryana, 512 (sic) when he rejected the contention of the revision petitioner.

11. In view of the above discussion, I feel that this court should not interfere in the impugned order passed by learned Additional District Judge, Delhi on 24th August 1984 substituting the respondent in place of Smt. Hasmukh Wati. Accordingly, I do not find any force in the Civil Revision and dismiss the same. A copy of the order be sent to the learned trial court along with trial court record as expeditiously as possible.

12. Revision dismissed.