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10. Since the arguments are centered around Section 15(2)
(c), Section 15(2) (c) is extracted hereunder.
"(c) Any property inherited by a female Hindu from her
predeceased son shall devolve, not upon other heirs
specified to in sub-section (1) in the order specified
therein, but upon the heirs of the predeceased son
from whom she inherited the property".
11. It is apposite to extract the Statement of Objects and
Reasons of Hindu Succession (Kerala Amendment) Act, 2015 :
"As per Section 8 of the Hindu Succession Act, 1956
(Central Act of 1956), the property of a male Hindu
dying intestate shall devolve firstly upon the heirs,
being relatives specified in Class I of the Schedule,
such as son, daughter, widow, mother. If the mother,
upon whom the property of her predeceased devolved,
dies intestate, the property will again be devolved to
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the other heirs of the mother as specified in Sections
15 and 16 of the said Act apart from the wife and
children of the predeceased son. Thus, the share
obtained by the mother from her predeceased son
devolves to her other legal heirs, other than the wife
and children of the predeceased son. It is an injustice
against the wife and children of such a predeceased
son. A number of requests have been received to
amend the said provision contained in sub-section (2)
of Section 15 of the said Act in such a manner that the
share obtained by the mother from her predeceased
son shall, after her death, devolve only upon the wife
and children of the predeceased son. Accordingly, the
Government have decided to amend sub-section (2) of
Section 15 of the said Act in the above manner."
12. The learned Senior Counsel for the appellant argued that
the very purpose of the amendment is to ensure that the
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property belonging to the deceased shall ultimately devolve
upon his wife and children. The said provision is inserted with
the said sole object, and in such case, the right of the mother
over the property inherited from her predeceased son is limited
to her enjoyment during his life without any right of alienation.
She gets only life interest in the said property. She does not get
partiable interest in the property.
13. The learned Counsel argued that Section 15(2) (c) is to be
construed liberally, taking into consideration the object of the
said provision. The learned Senior Counsel invited my attention
to the general principles regarding the construction of remedial
statutes. The learned Senior Counsel referred to the Text
'Principles of Statutory Interpretation by Justice G.P.Singh' in
which, taking note of the judicial precedents, it is stated that "
Remedial statute receives a liberal construction, whereas a
penal statute is strictly construed......... In case of remedial
statutes the doubt is resolved in favour the class of persons for
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whose benefit the Statute is enacted.....In construing a remedial
statute, courts ought to give to it the widest operation which its
language will permit. They have only to see that the particular
case is within the mischief to be remedial and falls within the
language of enactment. The words of such a statute must be so
construed as to give the most complete remedy which the
phraseology will permit so as to secure that the relief
contemplated by the statute shall not be denied to the class
intended to be relieved".Here, the wife and children of the
predeceased son form a class of persons to whom the benefit
of the provision is given. The provision has to be liberally
construed to ensure that the benefit reaches the said class. A
literal interpretation of the said provision would defeat the very
purpose for which the enactment is incorporated.
14. Learned Senior Counsel tried to distinguish between
succession and devolution. According to the learned Senior
Counsel, since the word used in 15(2)(c) is 'devolution,' it
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indicates a continuous devolution till it reaches the last heir, i.e.,
it first devolves upon the mother, and thereafter, it ultimately
devolves upon the wife and children of the deceased person. If
the mother is given absolute estate over the property inherited
from her predeceased son, she can very well defeat the further
devolution provided under Section 15(2) (c). In such a case, it
will be within the hands of the mother to defeat the very purpose
for which the amendment is incorporated. Hence, the right of the
mother over the property of the predeceased son has to be
interpreted as limited estate and not absolute estate.
15. Learned Senior Counsel invited my attention to the
meaning of the word 'devolve' in the Law Lexicon, which is
extracted as follows.
"Devolve. A term used where an estate devolves upon
another by operation of law and without any voluntary
act of the previous owner and passes from one person
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to another. Devolve means to pass from a person dying
to a person living; the etymology of the word shows its
meaning (per Leach, M.R, Parr v. Parr, 1 My. and K.
648). An estate is said to devolve on another when, by
operation of law and without any voluntary act of the
previous owner, it passes from one person to another
but it does not devolve from one person as the result
of some positive act are agreement between them. The
word is itself of intransitive signification and does not
include the result of an act which is intended to
produce a particular effect. It implies a result without
the intervention of any voluntary actor (Francisco v.
Aguirre, 29 Pac. 495, 497, 94 Calif. 180)."
16. Citing the said dictionary meaning, the Learned Senior
Counsel contended that devolution means passing property
from one person to another without any voluntary Act. Since the
word 'devolve' is used in Section 15(2) (c ), it is intended to pass
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the property from the mother of the deceased to his wife and
children.
17. Learned Senior Counsel cited the decision of the Madras High
Court in Ayi Ammal v. Ubramania Assari And Anr. [AIR 1966
Madras 369] and State of Punjab and others v. Balwant
Singh and others [1992 Suppl(3) SCC 108] to distinguish
between succession and devolution. On the strength of the said
decisions, the learned Senior Counsel argued that Section 15(1)
deals with the rule of succession, whereas Section 15(2) deals
with the rule of devolution.
18. Learned Senior Counsel relied on the decision of the Hon'ble
Supreme Court in Bhagat Ram v. Teja Singh [(1999) 4 SCC
86] to substantiate the point that there is a difference between
inheritance in Section 15 (1) and 15 (2). It is held in the said
decision that the spheres of the two sub-sections are very
clearly marked out, that sub-section (1) covers the properties of
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a female Hindu dying intestate, that since Sub-section (2) starts
with the words 'Notwithstanding anything contained in sub-
section (1) what falls within the sphere of sub-section (2),
subsection (1) will not apply; that property inherited by a female
Hindu from her father and mother is carved out from a female
Hindu dying intestate; that the 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 her father or
mother.
19. Learned Senior Counsel cited the decision of this Court in
Choyi v. Peravan Kutty [1995 (2) KLT 678] to substantiate the
point that if bequeath is made in favour of several persons, one
after the death of another, the first prima facie held to take life
interest and the second an interest in the remainder and thus
the apparent absolute interest of the first being cut down to
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accommodate the interest created in favour of the second. The
learned Senior Counsel argued that the same principle applies
in the case on hand as the devolution is first made in favour of
the mother and thereafter it is made in favour of the wife and
children of the predeceased son, and hence the right of the
mother is cut down to accommodate the wife and children of the
deceased who are the ultimate beneficiaries.
20. Learned Senior Counsel cited the decision of the Hon'ble
Supreme Court in V. Dandapani Chettiyar v.
Balasubramanian Chettiyar (dead) by LRs and Ors. [2003
(6) SCC 633] to substantiate the point that it is the source which
decides the inheritance under Section 15(2). The said decision
approved the decision of the Madras High Court in Ayi Ammal
(supra).
21. Learned Senior Counsel cited the Full Bench decision of this
Court in Kunnath Narayani @Thirumalikutty and others v.
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Kunnath Kochan @ Vasu and others [2018(3) KHC 207] to
demonstrate that there is no source-based reversion for the
inheritance of male Hindu in the Hindu Succession Act, but
differential treatment of inheritance is common for the
inheritance of female Hindu in the Hindu Succession Act.
22. Learned Senior Counsel cited the decision of the Hon'ble
Supreme Court in Om Prakash and Ors. v. Radha Charan &
Ors. [(2009) 15 SCC 66] in which it is held that as per Section
15(1), the self-acquired property of a female would be her
absolute property, but the property inherited by her from her
father would not become her absolute property in view of
Section 15(2).
23. Section 16(3) provides the manner of devolution in favour
of the heirs referred to in Section 15(2). Section 16(3) does not
refer to the case of the son coming under Section 15(2) (c),
while it covers the cases coming under Section 15(2) (b) & (c).
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It also supports the case of the appellants, according to Learned
Senior Counsel.
24. Learned Senior Counsel for the appellant concluded the
argument by stating that the right of the mother over the property
inherited from the predeceased son is only that of a limited
ownership with no right of alienation in view of Section 15(2)(c)
and that if she is given absolute right over the property, the very
purpose for which the provision is inserted will be defeated.
Hence, it is to be declared that the right of the mother over any
property inherited from her predeceased son is limited to the
enjoyment during her life. The decision of this Court in Binu
(supra) requires reconsideration.
25. On the other hand, the Learned Senior Counsel for the
respondent argued that the issue is squarely covered by the
decision of this Court in Binu (supra). The law is correctly laid
down in the said decision. It does not require any
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reconsideration. There is nothing in Section 15(2)(c) to limit the
right of the mother over the property inherited from her
predeceased son. She takes the inheritance absolutely with full
right of alienation. The Courts cannot rewrite something into the
provision which is absent in the said provision. If Section 15(2)
(c) is interpreted as contended by the learned counsel for the
appellant, it will defeat the right of the mother over the property
inherited by her from her predeceased son. The learned senior
counsel invited my attention to Section 14 of the Hindu
Succession Act, which states that any property possessed by a
female Hindu shall be held by her as full owner thereof and not
as limited owner. In the case on hand, the property is possessed
by the respondent mother consequent to the death of her son
and hence it could not be treated as a limited owner in view of
Section 14. Senior Counsel concluded by contending that there
is no substantial question of law in the matter, and the
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substantial questions of law formulated are settled by the
decision of this Court in Binu (supra).
26. I have considered the rival contentions.
27. The decision of this Court in Binu (supra) is on the same set of
facts as those of this case. In that case, also, a suit for partition
was filed by the mother in respect of the property of the
predeceased son against the wife and children of the deceased
son. The Substantial Questions of Law formulated in Binu
(supra) are as follows.
1. Does S.8 r/w schedule to Hindu Succession Act,
1955 survive after the introduction of S.15(2)(c)? If so,
does not S.15(2)(c) limit the claim of the mother of a
predeceased Hindu son to his property to a life estate
and deprive her of a share?
2. Is not the right of the mother eclipsed by the
amendment, depriving her of the right to seek a
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partition? Consequently, can she enforce a metes and
bounds partition of the property as against the wife and
daughters of her son?
28. It is useful to extract the relevant parts of Paragraph Nos. 14 to
17 in the said decision in which the questions are answered.
"14...................... So S.15(2)(c) would control the
right of inheritance of the heirs of female Hindu
provided under S.15(1), and it has no impact on the
devolution of the property of a male Hindu died
intestate provided under S.8. To put it in other words,
S.8 is not controlled by S.15(2)(c) or introduction of
S.15(2)(c) will not eclipse the right of mother depriving
her claim for partition of the property of predeceased
son as contended by the learned counsel for the
appellant. So the argument to the contrary advanced
by the learned counsel for the appellant is not
sustained in law.
15. S.14 of the Act also expressly provides that any
property possessed by a female Hindu, whether
acquired before or after the commencement of the Act,
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be held by her as full owner and not as a limited owner.
Explanation to S.14 provides that 'property' includes
both movables 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,
etc. So, a property acquired by a female Hindu by
inheritance will also be held by her as a full owner and
not as a limited owner.
16. S.15(2)(c) did not intend to provide any limited right
of inheritance to a female Hindu of the property of the
predeceased son. The property inherited by her as the
legal heir of the deceased son as heir under Class I of
S.8(a) is her absolute property, and the introduction of
S.15(2)(c) will not limit that right to that of life estate
especially because there is no such express wording
in sub-clause (c) of sub-section (2). What sub-clause
(c) intended to introduce is the devolution of property
of a female Hindu inherited from her predeceased son
upon his legal heirs and not the other heirs provided
under S.15 (1). It would only indicate the devolution of
property on her death, and it does not limit her right
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over the property inherited from her predeceased son
as a limited owner.
17. So when a property is devolved upon a female
Hindu as per S.8 due to the death of a son as a Class
I heir of the Schedule, it is as full owner and not as a
limited owner. So, S.15(c) cannot be read
independently with S.14 or S.8. As stated earlier, S.8
or S.14 are not controlled by S.15(2)(c). Hence, in the
present case, property devolved upon the plaintiff as
an heir of the son in Class I as per S.8(a) of the Act is
as full owner and not as a limited owner, and the suit
for partition filed by her is perfectly maintainable.
Hence, judgment and decree passed by the courts
below are hereby confirmed."
29. The learned Single Judge of this Court in the aforesaid
decision has specifically held that in view of Section 14 of the
Hindu Succession Act, any property possessed by a female
Hindu shall be held by her as full owner and hence property
acquired by a female Hindu by inheritance also will be held as
a full owner and not as a limited owner and that S.15(2)(c) does
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not intend to provide any limited right of inheritance to a female
Hindu of the property of the deceased son.
30. If the said decision in Binu (Supra) is applied, this Regular
Second Appeal is liable to be dismissed. The question is
whether the said decision requires reconsideration in view of the
arguments advanced before me.
31. It is true that the object of Section 15(2) (c) is to see that the
property of the deceased husband, which is inherited by his
mother, devolves ultimately upon his wife and children. The
provision does not take away the inheritance in favour of the
mother. The question is whether the mother can deal with the
property as her absolute property or whether the mother should
hold the property during her lifetime for devolving the same to
the wife and children of the deceased son. As rightly pointed out
by the learned Senior counsel for the appellant, if the mother is
given absolute right over the property, she can very well defeat
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the object of the provision, and in such case, the application of
the said provision would be at the will of the mother. At the same
time, as contended by the learned Senior Counsel for the
respondent, the provision does not in any way curtail the right
of the mother over the property inherited by her from her
predeceased son.
32. It is true that if the right of the mother over the property is
not restricted, the result would be that the wife and children of
the predeceased son would be getting only the property
available at the time of death of the mother, if any. On going
through the said provision, I am of the view that the Section is
intended to operate on the death of the mother of a predeceased
son from whom she inherited the property. The provision does
not have any operation before the date of death of the mother.
When the Legislature has enacted a provision for operating on
the death of the mother, the Court has no jurisdiction to rewrite
the said provision for making its operation before the death of
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the mother to restrict the interest of the mother. The provision
makes it abundantly clear that it does not want to interfere with
the absolute rights of the mother over the property. The only
contingency which is contemplated is the inheritance of the said
property of the predeceased son, on the death of mother to her
legal heirs. The provision is incorporated only to prevent that
contingency alone. If the provision is interpreted to mean that
the mother is having limited ownership to make the property
available for devolution to the wife and children of the
predeceased son, it would be defeating the valuable rights of
the mother over the property of her predeceased son. The
legislature has not intended to restrict the rights of the mother in
any way. Such an intention could not be deduced from the
Statement of Objects and Reasons of the Hindu Succession
(Kerala Amendment) Act, 2015. The provision was intended to
take away an injustice that when a Hindu male dies, the legal
heirs of his mother get the property through the right of the
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mother, avoiding the wife and children of such a Hindu male.
The Legislature wanted to limit the inheritance of the property
that existed at the time of the mother's death within the family of
the predeceased son. It is not permissible for this Court to
rewrite the provision so as to restrict the right of the mother,
which is absent in the provision and never intended by the
Legislature.
33. It is true that in the case of remedial statutes, the provisions
are to be interpreted liberally for the benefit of a class of persons
to whom the benefits are intended. But a statutory provision is
not open for liberal construction when it admits no doubt and
only one construction is possible. A statutory provision is open
for liberal construction only when there is doubt and more than
one construction is possible. Going by the Statement of Objects
and Reasons of Amendment Act, S.15(2)(c) is enacted for the
benefit of the wife and children of the predeceased son. But
under the guise of liberal construction of the provision the
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Courts are not expected to rewrite the provision to include some
benefits to the class of persons which legislature never intended
to extend.
34. As rightly contended by the learned Senior counsel for the
appellant, Sub Section (2) Of Section 15 is an exception to
general rules of succession provided under Sub Section (1) of
the said Section. In cases where S.15(2) is applicable, S.15(1)
is not applicable as decided in Bhagat Ram(supra). As held in
the decision V. Dandapani Chettiyar, it is the source which
decides the inheritance in Sub Section (2). The non-obstante
clause in Sub Section (2) would show that it will prevail over Sub
Section (1). Sub Sections (1) and (2) operate in different
spheres. But even accepting all these arguments, I am unable
to extend the operation of Section.15(2)(c) during the lifetime of
the mother to restrict her rights over the property mentioned
therein in order to ensure the ultimate benefits to the wife and
children of the predeceased son.
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35. As rightly contended by the learned Senior Counsel for the
appellant, it is the source that determines devolution under
Section 15(2). Subsection (2) of Section 15 is based on the
principle of source-based reservation. The property has to go
back to the same source and should not go into the hands of
strangers of such source. Sub Clause (a) of Section 15(2) wants
to prevent the property which came from the source of the
parents of a Female Hindu from going into the family of the
husband, including the husband, in case such a female Hindu
dies without any child and including a child of a predeceased
child. Sub clause (b) wants to prevent the property which came
from the source of the husband of a Female Hindu or his father
from going into the family of such female Hindu in case such
female Hindu dies without any child and including a child of a
predeceased child. The newly inserted Sub-clause (c) wants to
prevent the property that came from the source of the son of a
Female Hindu from going into the family of such a female Hindu.
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If it is found that the interest of female Hindu is limited with
respect to the property referred in Sub Clause (c), the same
principle will apply for the properties referred in Sub Clauses (a)
and (b) also. The legislature did not want to disturb or restrict
the interest of a female Hindu referred to in Section 15(2) over
the properties therein. Of course in all cases, the Female Hindu
can defeat the reversion to the source by her act. She can sell
the property or transfer the property to a person belonging to
the class which is prohibited from inheritance therein. Even
then, the Legislature never intended to restrict the enjoyment of
the Female Hindu during her life time as full owner. The
legislature only wanted to avoid a situation in which a remainder
of the property from going into the hands of strangers to the
source. The legislature thought it was an injustice that the
remainder of the property was allowed to be enjoyed by
strangers when persons were available at the source from
which the property originated. The legislature wanted to see that
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the remainder of the property shall be reserved for the persons
available in the source from which the property originated. As
far as Sub Clause (c) is concerned, the Legislature did not want
to restrict the rights of the mother over the property inherited
from her predeceased son. The legislature did not want to make
such property useless to the mother. In such cases, the Courts
are not expected to rewrite and include something into the
provision that the legislators have never contemplated and
intended, even if there is injustice. The sole reason that the
mother can defeat the right of devolution by her individual act is
not a reason or a ground for this Court to rewrite the provision.
The interpretation put forward by the appellant, if accepted,
would make the interest of the mother, who inherited property
from his predeceased son, a life interest and would definitely
infringe on her rights over the property.
36. It is true that Section 16(3) does not refer to the case of the
son referred to in Sub Clause(c), while it covers the devolution
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in favour of heirs coming under Section 15(2). It refers to the
case of parents referred to in Sub Clause (a) and refers to the
case of the husband and his father referred to in Sub Clause
(b). At the time when 16(3) was enacted Subsection (2) of
Section 15 had only two Sub clauses (a) and (b) - Clause (a)
dealing with the property of parents and Clause (b) dealing with
the property of husband. While inserting Clause (c), the
corresponding amendment was not made in Section 16(3).
Hence, the case of the son referred to in Sub Clause(c) was not
referred to in Section 16(3). The possible inference is that in the
case of the son also, the same principle applies, and the
devolution shall be in the same order and according to the same
rules as would have applied if the property had been the son's
and such person had died intestate in respect thereof
immediately after the intestate's death. The absence of
reference to the case of the son in Section 16(3) does not
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improve the case of the appellant in the matter of interpretation
of 15(2) (c).
37. I am unable to accept the argument of the learned Senior
Counsel for the appellant that since the word 'devolve' is used
in Section 15(2), the intention is to continue the devolution till it
reaches the class of persons for whose benefit the provision is
enacted. Devolution can be limited to one person to another or
persons to persons in progression. The limits of devolution
would depend on the rules of devolution, and it could not be said
that merely the 'devolve' is used, it should be treated as a
continuous devolution or devolution from person to person. In
both Sub Section (2) and (3) of Section 15, the term used is
'devolve,' and it could not be said that the term 'devolve' has a
different meaning in Sub Section(2). The devolution referred to
in Clause (c) happens on the death of the mother and not on the
death of a son. Hence, it could not be said that the intention of
the legislature is that the property devolves from the son to his
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heirs in all circumstances. Clause (c) does not deal with the
devolution of property on the son's death. Devolution of the
son's property is governed by Section 8. Section 15(2)(c) does
not affect or control the devolution of the son's property
governed by Section 8.
38. The next contention of the learned Senior Counsel for the
appellant is that the terms 'intestate' and 'available for intestate
succession' are absent in Section15 (2), and if the Legislature
wanted to see that the provision is applicable only to the
property available for intestate succession, that would have
been specifically stated. Hence, the devolution could only be for
the entire property inherited by the mother and not the property
available for intestate succession. It is not permissible to add
those words which would negate the very object of the
provision. Clause (c) refers to the property of the mother of the
predeceased son. The existence of the properties as on the
date of death of the mother is to be identified. Then, the question
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is whether any property inherited from her predeceased son
exists in the hands of the mother at the time of her death. If such
property is available as on the date of death of the mother, then
only Clause (c) comes into operation with respect to such
property alone. Clause (c) is not applicable to all the properties
of the mother and all the inherited properties from the
predeceased son. The existence of the inherited properties from
the predeceased son as on the date of death of the mother
alone is the criteria for application of Clause (c), and hence, no
reference needs to be made with available property out of the
inherited properties from the predeceased son.
39. The learned Single Judge of this Court in Binu (supra) held
that Section 14 is also applicable to Section 15 (2)(c). It
expressly provides that any property possessed by a female
Hindu shall be held as a full owner and not as a limited owner.
On the death of the son, the mother also becomes the absolute
owner of her share and co-owner of the entire property, and
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hence, the mother is also possessed with the property. There is
no ground or reason to take a different view.
40. In view of the aforesaid discussions, I am in respectful
agreement with the view expressed by the Learned Single
Judge in Binu (supra), even after consideration of the points
raised by the learned Senior Counsel for the appellant. The
decision in Binu (supra) does not require any reconsideration,
and hence, no reference to the Division Bench is required.
41. The decision of this Court in Binu (supra) is squarely
applicable to the facts and circumstances of the case. The
Regular Second Appeal deserves only dismissal.
42. The Substantial Questions of law No.1 and 2 are answered
in the affirmative and against the appellants. No argument was
advanced in support of the Substantial Question of Law No.3,
and hence, I find that the Substantial Question of Law No.3 does
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not arise in the matter. Accordingly, the Regular Second Appeal
is dismissed with costs.
Sd/-
M.A ABDUL HAKHIM,
JUDGE
jma
