Yoginder Parkash Duggal vs Om Prakash Duggal & Anr.
2000 Latest Caselaw 48 Del

ORDER

J.B. Goel, J.

1. I.A. 9014/95 is under Order 22 Rule 2 of the Code of Civil Procedure (for short "the Code") for substitution of legal representatives of deceased defendant No. 2; I.A. 8994/95 is under Section 5 of the Limitation Act for condensation of delay and I.A. 9013/95 is for modification of the preliminary decree passed in the suit in view of the death of defendant No. 2.

Deceased Smt. Vidyawati widow of Shri Sardari Lal Duggal had died on 6.2.1981 leaving behind two sons Yoginder Parkash Duggal and Om Prakash Duggal and a daughter Ms. Santosh Kumari Duggal (defendant No.2) as her legal representatives. She owned property No. F-254, Shankar Road, New Rajinder Nagar, New Delhi. Yoginder Prakash Duggal filed the suit for partition of the property claiming 1/3rd share in it. The plaintiff died during pendency of the proceedings and his widow Smt. Pratibha Duggal was substituted as his legal representative on 8.9.1989. As there was no dispute about the shares of the parties, a preliminary decree was passed on January 8, 1992 declaring that each of the three heirs are entitled to 1/3rd share each. Actual partition has not taken place so far. In the meantime, defendant No. 2 has also died. She died issueless and was unmarried. There is a dispute between the plaintiff and the defendant No. 1 as to who is entitled to her 1/3rd share, defendant No. 1 claims exclusive right to her 1/3rd share whereas plaintiff claims equal share with defendant No. 1.

2. Learned counsel for the plaintiff has contended that as the deceased defendant No.2 had inherited the share in property from her mother, her share would devolve among the heirs of her father under Section 15(2)(a) of the Hindu Succession Act, 1956 (for short "the Act"). He has relied on Bhagat Ram (Dead) Vs. Teja Singh . Whereas learned counsel for the defendant No.1 has contended that the succession will be governed by Section 15(1) read with Rule 3 of Section 16 of the Act and defendant No.1 alone inherits it. He has relied on Seethalakshmi Ammal Vs. Muthuvenkatarama Iyengar & Anr. 1998 III AD (SC) 681 and State of Punjab Vs. Balwant Singh & Ors. AIR 1991 SC 2301.

3. It is not disputed that defendant No.2 has died as a spinster. It is also not disputed that the property was inherited by the deceased from her mother. Rules of succession in respect of inheritance of males are contained under Section B and in respect of inheritance to females in Section 15 read with Section 16 of the Act. Section 15 of the Act reads as under:-

"15 General rules of succession in the case of female Hindus. - (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, -

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

4. In State of Punjab Vs. Balwant Singh & Ors. (supra), the facts are that Mahan Kaur had inherited certain agricultural land from her husband. Mahan Kaur died intestate after coming into force of the Act. The Revenue Asstt. Collector mutated the land in favour of the State on the ground that there was no heir to succeed her. One Balwant Singh, a grandson of the brother of Mahan Kaur filed a suit for possession of her property and also for declaration that he was entitled to redeem the mortgaged property from defendants 2 to 6. The Trial Court had held that he was not entitled to succeed to the property of the deceased since the property was inherited by Mahan Kaur from her husband and dismissed the suit. Appeal was also dismissed by the District Court. However, the High Court accepted the appeal and decreed the suit. The Supreme Court after construing the provisions of Sections 15, 16 and 8 of the Act observed that:-

"Sub-section (2) of Section 15 begins with a non obstante clause providing that the order of succession is not that prescribed under sub-section (1) of Section 15. It carves out two exceptions to the general order of succession provided under sub-section (1). The first exception relates to the property inherited by a female Hindu from her father or mother. That property shall devolve, 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 in sub-section (1) in the order specified therein, but upon the heirs of the father. The second exception is in relation to the property inherited by a female Hindu from her husband or from her father-in-law. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the predeceased son or daughter) not upon the other heirs referred to under sub-section (1) in the order specified therein but upon the heirs of the husband.

5. After referring to Bhajya Vs. Gopikabai , it was further observed that Rule 3 of Section 16 creates a fiction for the purpose of ascertaining the order of devolution and it has to be assumed that the husband had died intestate immediately after the female intestate's death. Bearing in mind this fiction, one has to go to the schedule under Section 8 of the Act to find out the heirs of the husband who are entitled to succeed to the property of the intestate. Reference was also made to the recommendations of the Joint Committee of two Houses of Parliament and it was further observed that:-

"That report of the Joint Committee which was accepted by Parliament indicates that sub-section (2) of Section 15 was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands of persons to whom justice would demand that they should not pass. That means the property should go in the first instance to the heirs of the husband or to the source from where it came."

6. It was held that the property would go to the heirs of the husband of the deceased Mahan Kaur under Section 15(2)(b) of the Act. The appeal was allowed and the suit was dismissed.

7. In Bhagat Ram (Dead) Vs. Teja Singh (supra), also it was held that in case of the succession to a childless female dying intestate who had inherited the property from her mother or father, Section 15(1) of the Act is not applicable. Again after referring to Sections 15 and 16 of the Act, it was held:-

"On a perusal of the two Sub-sections we find that their spheres are very clearly marked out. So far as Sub-section (1) is concerned, it covers the properties of a female Hindu dying intestate. Sub-section (2) starts with the words 'Notwithstanding anything contained in Sub-section (1). In other words, what falls within the sphere of Sub-section (2), Sub-section (1) will not apply. We find that Section 15(2)(a) uses the words 'any property inherited by a female Hindu from her father or mother'. Thus property inherited by a female Hindu from her father and mother is carved out from a female Hindu dying intestate. In other words any property of a female Hindu, if inherited by her from her father or mother would not fall under Sub-section (1) of Section 15. Thus, property of a female Hindu can be classified under two heads: every property of a female Hindu dying intestate is a general class by itself covering all the properties but Sub-Section (2) excludes out of the aforesaid properties the property inherited by her from father or mother."

8. Learned counsel for the defendant No. 1 relying on the case of Balwant Singh (supra) and the report of the Joint Committee of Parliament noticed therein, has contended that the purpose of the enactment was that the property should devolve in the family of the last owner and in this case the plaintiff widow of the deceased son of the last owner does not belong to the same family. This contention is difficult to appreciate. Plaintiff Pratibha Duggal is the widow of the pre-deceased son of the father of the deceased defendant daughter. Plaintiff on marriage became a member of the family with her husband and is not a stranger to the family. The property was inherited by the deceased defendant No.2 from her mother. Section 15(2)(a) is applicable and the property would devolve upon the heirs of the father of the deceased, notionally treating that the father had died immediately after the death of defendant No. 2 daughter. Rules of inheritance to a male are contained in Section 8 read with Schedule I of the Act. Widow of a pre-deceased son inherits equally along with the son in the property of the father. In that view, plaintiff and defendant No.1 would inherit 1/3rd share of defendant No.2 on her death in equal shares. As a result, plaintiff and defendant No.1 shall get 1/2 share each in the suit property.

9. The preliminary decree passed on January 8, 1992 is accordingly modified to this extent. The share of both the plaintiff and defendant No. 1 shall be 1/2 each in the property No.F-254, Shankar Road, New Rajinder Nagar, New Delhi.

10. I.A. 9013/95 for modification of the preliminary decree is allowed and stands disposed of.

I.A. 8994/95

11. This is an application for condensation of delay in filing the application for substitution of legal representatives of defendant No.2. The legal representatives of the deceased defendant are already on record. The question of delay does not arise. This application is disposed of

I.A. 9014/95 (Order 22 Rule 2 CPC)

12. Name of defendant No.2 be deleted. This application is also allowed and stands disposed of.