Delhi High Court

Raj Rani & Anr. vs Bimla Rani on 3 June, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 1.06.2011
                               Judgment delivered on : 03.06.2011

+ R.S.A.No. 164/2005 and CM Nos. 8899/2005, 2149/2006 &
10190/2010

RAJ RANI & ANR.                                  ...........Appellants

                         Through:    Mr. Prem Bhusan Dewan and
                                     Ms. Gurjeet Kaur, Advocates.

                         Versus

BIMLA RANI                                      ..........Respondent
                         Through:    Mr. B.N. Gupta, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

28.04.2005 which had reversed the finding of the trial judge dated

05.08.2003. Vide judgment and decree dated 05.08.2003, the suit

filed by the plaintiff Bimla Rani seeking partition of the suit

property i.e. property bearing no. 14, Pandit Park, Patparganj

Road, opp. Gandhi Nagar Police Station, Delhi (hereinafter

referred to as the suit property) had been dismissed. Impugned

judgment has reversed this finding; preliminary decree for

partition had been passed apportioning 1/3rd share to each of the

parties, i.e., to the plaintiff and the two defendants.

2. Plaintiff Bimla Rani is the daughter of late Sh. Bhola Ram,

borne out of the wedlock of late Bhola Ram and Smt. Lajo Devi.

Defendants are the step sisters of the plaintiff; defendant no. 1

and 2 having been borne out of the wedlock of late Sh. Bhola Ram

and Smt. Motia Rani. Father of the plaintiff and the defendants

late Sh. Bhola Ram is common.

3. Bhola Ram was the owner of the aforenoted suit property.

He had by a registered will dated 01.03.1966 bequeathed this

property to Motia Rani. Motia Rani had by a subsequent will

dated 26.11.1983 bequeathed this property to her two daughters

i.e. the two defendants. There is no dispute that after the death of

Bhola Ram by virtue of his will dated 01.03.1966; Motia Rani had

become the owner of this suit property. Under Section 14 of the

Hindu Succession Act, 1956 (hereinafter referred to as HSA) , any

property possessed by a female Hindu, whether acquired before

or after the commencement of this Act, shall be held by her as full

owner thereof and not as a limited owner; the explanation

explains that this property includes both movable and immovable

property acquired by a female Hindu by inheritance or devise, or

at a partition, or in lieu of maintenance or arrears of maintenance,

or by gift from any person. Thus, there is no dispute that the suit

property had devolved upon the Motia Rani in her capacity as a

full-fledged owner.

4. The contention of the plaintiff is that she also being the

daughter of Bhola Ram was entitled to a share in the suit

property; suit for partition had been filed. Defense of the

defendants was that Motia Rani had bequeathed this property in

their favour by virtue of her will dated 26.11.1983. This will had

admittedly not been proved. Contention of the defendants is that

even otherwise under the law of succession, the daughters of

Motia Rani alone could have inherited this property from Motia

Rani and Bimla Devi not being her "daughter", (under Section 15

of the HSA); she had no interest in the suit property).

5. Six issues had been framed by the trial judge. Trial judge

was of the view that the will of Motia Rani had been proved; since

the plaintiff knew about this will of Motia Rani, she not having

challenged it; it did not now lie in her mouth to assert to the

contrary. In terms of the aforenoted will, the suit property had

been validly bequeathed to her two daughters; suit of Bimla Devi

had been dismissed.

6. The impugned judgment had reversed this finding of the

trial judge. Court was of the view that the will of Motia Rani has

not been proved in accordance with law; all the parties were

entitled a 1/3rd share in to the suit property; a preliminary decree

for partition had been passed in favour of all the parties

apportioning 1/3 rd share each to the plaintiff and the two

defendants.

7. This is a second appeal. It has been admitted and on

31.08.2009, the following substantial question of law had been

formulated:-

"Whether the Appellate Court did not rightly appreciate the

provision of Section 15 read with Schedule of the Hindu

Succession Act while passing preliminary decree for partition in

favour of the respondent?"

8. The question which thus has to be answered by this court is

as to whether the impugned judgment had correctly interpreted

the provisions of Section 15 of the HSA or not by bequeathing

1/3rd share to the two natural daughters and 1/3rd share to the step

daughter of Motia Rani.

Relevant would it be to extract this provision of law.

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.

(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 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 husband."

9. Section 16 is also relevant. It reads as under:-

"16. Order of succession and manner of distribution among heirs of a female Hindu. -

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate property among those heirs shall take place according to the following rules, namely :-

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

Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate‟ 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 sub-section (2) to section 15 shall be in the same order and accordingly 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."

10. The aforenoted provisions of law deal with succession of a

Hindu female in respect of property over which she has an

absolute right.

11. Section 15 deals with the distribution of property of a

female Hindu inter se between the heirs; the order of succession

is prescribed under Section 16. The property of a female Hindu

shall thus devolve in the manner prescribed therein. The rules of

succession prescribe that the sons and daughters of the Hindu

female (including the children of any pre-deceased son or

daughter) and her husband shall be in the first category of

beneficiaries. This is a simultaneous succession by all the heirs

together. Thus the husband and each son and each daughter is

entitled to an equal share; sub-Section 15 (1) (a) also recognizes

the right of representation, to the extent that children of a pre-

deceased son or a daughter are also entitled to succeed along

with the son, daughter and the husband of the deceased female

Hindu. The heirs of the husband succeed after the children and

husband and this is evident from Section 15 (1) (b). The heirs of

the husband have to be ascertained under Section 8 of the HSA

which lays down the rules of succession of a male dying intestate.

12. It is not in dispute that the subject matter of the suit

property was the absolute property of Motia Rani; she had become

a full-fledged owner with absolute rights in terms of Section 14 of

the HSA.

13. Question which has to be answered is whether the

expression "daughter" as appearing in Section 15 (1) (a) includes

a step daughter i.e. the daughter of the husband of the deceased

by another wife. The word „daughter‟ and „step-daughter‟ have

not been defined in the HSA. According to the Collin‟s English

Dictionary, "daughter" means a female off-spring and a "step-

daughter" means a daughter of one‟s husband or wife by a former

union. In the case of women, it is natural that the step-daughter

i.e. daughter borne out of her husband‟s wedlock with another

wife is a step away from the daughter who has come out of the

female‟s own womb. If a step daughter does not fall within the

scope of the expression "daughter" under Section 15 (1) (a), she is

sure to fall under Clause (b) of Section 15 (1) being the heir of her

husband.

14. The expression „daughter‟ in Section 15 (1) (a) of the Act

would thus include:-

(a) daughter borne out of the womb of the female by the

same husband or by different husbands and includes

an illegitimate daughter; this would be in view of

Section 3(j) of the HSA

(b) adopted daughter who is deemed to be a daughter for

the purpose of inheritance.

Children of a pre-deceased daughter or an adopted daughter

also fall within the meaning of the expression „daughter‟ as

contained in Section 15 (1) (a). If the legislature had felt that the

word „daughter‟ should include the word "step-daughter", it

should have said so in express terms. Thus, the word „daughter‟

appearing in Section 15 (1) (a) would not include a "step

daughter" and such a step-daughter, in the view of this Court

would fall in the category of an heir of her husband as referred to

in Clause 15 (1) (b).

15. This view finds support from the decision of the Mysore

High Court reported in AIR 1962 Mys 140 Mallappa Fakirappa

Sanna Nagashetti & Ors Vs. Shivappa and Anr. as also the

Bombay High Court reported in AIR 1969 Bom 205 Rama Ananda

Patil Vs. Appa Bhima Redekar and Ors. The High Court of Punjab

and Haryana reported in MANU/PH/0022/1977 Gurnam Singh Vs.

Smt. Ass Kaur and Ors had also followed the same view; word

„son‟ in Section 15 (1) (a) did not include a step son. Same was

the view taken by the Calcutta High Court in AIR 1980 Calcutta

334 Smt. Kishori Bala Mondal Vs. Tribhanga Mondal & Ors.

Allahabad High Court reported in I.L.R. 1968 (1) All 697 Ram

Katori Vs. Prakash Wati had taken a contrary view. This

controversy had been set at rest by the Apex court in AIR 1987 SC

1616 Lachman Singh Vs. Kirpa Singh & Ors. The Apex court had

rejected the contrary view of the Allahabad High Court. The Apex

Court, in this context, had noted as follows;-

"The words 'sons and daughters...and the husband' in

Clause (a) of Section 15(1) only mean 'sons and daughters...and

the husband' of the deceased. They cannot be 'sons and

daughters...and the husband' of any body else. All relatives

named in the different clauses in Sub-section (1) of Section 15 of

the Act are those who are related to the deceased in the manner

specified therein. They are sons, daughters, husband, heirs of the

husband, mother and father, heirs of the father and heirs of the

mother of the deceased. The use of the words 'of the deceased'

following 'son or daughter' in Clauses (a) and (b) of Sub-section

(2) of Section 15 of the Act makes no difference. The words 'son

of daughter of the deceased (including the children of any

predeceased son or daughter)' in Clauses (a) and (b) of Section

15(2) of the Act refer to the entire body of heirs falling under

Clause (a) of Section 15(1) of the Act except the husband. What

Clauses (a) and (b) of Sub-section (2) of Section 15 of the Act do is

that they make a distinction between devolution of the property

inherited by a female Hindu dying intestate from her father or

mother on the one hand and the property inherited by her from

her husband and from her father-in-law on the other. In the

absence of any son or daughter of the deceased (including the

children of any predeceased son or daughter), in a case falling

under Clause (a) of Section 15(2) of the Act the property devolves

upon the heirs of the father of the deceased and in a case falling

under Clause (b) of Section 15(2) of the Act the property devolves

upon the heirs of the husband of the deceased. The distinction

made by the High Court of Allahabad on the ground of the

absence or the presence of the words 'of the deceased' in Sub-

section (1) and Sub-section (2) of Section 15 of the Act appears to

be hyper-technical and the High Court has tried to make a

distinction where it does not actually exist. The second reason,

namely, that exclusion of step-sons' and 'step-daughters' from

Clause (a) of Section 15(1) of the Act would be unfair as they

would thereby be deprived of a share in the property of their

father is again not well-founded. The rule of devolution in Section

15 of the Act applies to all kinds of properties left behind by a

female Hindu except those dealt with by Clauses (a) and (b) of

Section 15(2) which make a distinction as regards the property

inherited by her from her parents and the property inherited from

her husband or father-in-law and that too when she leaves no

sons and daughters (including children of predeceased sons and

daughters). If the construction placed by the High Court of

Allahabad is accepted then the property earned by the female

Hindu herself or purchased or acquired by her would devolve on

step-sons and step-daughters also along with her sons and

daughters. Is it just and proper to construe that under Clause (a)

of Section 15(1) of the Act her step-sons and step-daughters, i.e.,

children of the husband by another wife will be entitled to a share

along with her own children when the Act does not expressly says

so? We do not think that the view expressed by the High Court of

Allahabad represents the true intent of the law. When once a

property becomes the absolute property of a female Hindu it

shall devolve first on her children (including children of the

predeceased son and daughter) as provided in Section 15(1)(a) of

the Act and then on other heirs subject only to the limited change

introduced in Section 15(2) of the Act. The step-sons or step-

daughters will come in as heirs only under Clause (b) of Section

15(1) or under Clause (b) of Section 15(2) of the Act. We do not,

therefore, agree with the reasons given by the Allahabad High

Court in support of its decision. We disagree with this decision."