Arunachala Gounder (Dead) by Lrs. vs Ponnusamy and Ors.

Hindu Succession Act, 1956: s.14 – Absolute right of female Hindu – Held: s.14 of the Act of 1956 declares property of a female Hindu to be her absolute property – The legislative intent of enacting s.14(I) of the Act was to remedy the limitation of a Hindu woman who could not claim absolute interest in the properties inherited by her but only had a life interest in the estate so inherited – s.14(1) converted all limited estates owned by women into absolute estates and the succession of these properties in the absence of a will or testament would take place in consonance with s.15 of the Act, 1956. Hindu Succession Act, 1956: s.15(2) – Purpose of enactment – Held: The basic aim of the legislature in enacting s.15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source – s.15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father – The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death – Applying the settled legal proposition to the facts of the case at hands, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.

Hindu law: History and development – Hindus believe their laws to exist in the revelations preserved in ‘Vedas’, Shrutis (that which are heard and revealed) and Smritis (that which is remembered) in contradiction to Shrutis – The Smritis comprise forensic law or the Dharma Shastra and are believed to be recorded in the very words of Lord Brahma – The Dharma Shastra or forensic Law is to be found primarily in the institutes or collections known as ‘Sanhitas’, Smritis or in other words, the text books attributed to the learned scholarly sages, such as, Manu, Yajnavalchya, Vishnu, Parasara and Guatama, etc. – Their writings are considered by the Hindus as authentic works – On these commentaries, digests and annotations have been written – The commentaries by various learned scholars have given rise to different schools of Hindu Law - like Daya Bhaga in Bengal, Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India – The Mitakshara school of law is one of the most important schools of law having a very wide jurisdiction – It applies to majority of India with slight variations with the fundamental principles being the same – The Mitakshara has always been considered as the main authority for all the schools of law, with the sole exception of that of Bengal, which is mostly covered by another school known as Daya Bhaga – The Mitakshara school derives majorly from the running commentaries of Smritis written by ‘Yajnavalkya’.

Hindu law: Dayabhaga system and Mitakshara system – Distinction between – The Dayabhaga system prevails in Bengal, while the Mitakshara system is applicable to other parts of India – The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under the Mitakshara School – Sometimes consanguinity, and at the other times, religious efficacy has been regarded as the guiding principle – According to ‘Mulla’, Mitakshara recognises two modes of devolution of property, namely, survivorship and succession – The rules of survivorship apply to joint family property, and the rules of succession apply to property held in absolute severalty by the last owner.

Allowing the appeal, the Court

HELD: 1.1 The exact origin of Hindu Law is shrouded in antiquity, however, the Hindus believe their laws to exist in the revelations preserved in ‘Vedas’, Shrutis (that which are heard and revealed) and Smritis (that which is remembered) in contradiction to Shrutis. The Smritis comprise forensic law or the Dharma Shastra and are believed to be recorded in the very words of Lord Brahma. The Dharma Shastra or forensic Law is to be found primarily in the institutes or collections known as ‘Sanhitas’, Smritis or in other words, the text books attributed to the learned scholarly sages, such as, Manu, Yajnavalchya, Vishnu, Parasara and Guatama, etc. Their writings are considered by the Hindus as authentic works. On these commentaries, digests and annotations have been written. These ancient sources have thus, charted the development of Hindu Law. These sources constantly evolved over the years, embracing the whole system of law, and are regarded as conclusive authorities. Besides these sources customs, equity, justice, good conscience and judicial decisions have also supplemented the development of Hindu Law. [Para 21][285-C-E]

1.2 The commentaries by various learned scholars have given rise to different schools of Hindu Law- like Daya Bhaga in Bengal, Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India. The Mitakshara school of law is one of the most important schools of law having a very wide jurisdiction. It applies to majority of India with slight variations with the fundamental principles being the same. These slight variations formed various sub- schools, namely, Banaras School, Mithila School, Maharashtra/Bombay School, Dravida/ Madras School. The Mitakshara is supposed to be the leading authority in the school of Benaras. Mr. Colebrooke, a famous sanskrit scholar of Bengal, writes “the range of its authority and influence is far more extensive than that of Jinota Vahanas Treatise for it is received in all other schools of Hindu Law, from Benaras to the southern extremity of the Peninsula of India, as the chief groundwork of the doctrines which they follow, and as an authority from which they rarely dissent”. The Mitakshara has always been considered as the main authority for all the schools of law, with the sole exception of that of Bengal, which is mostly covered by another school known as Daya Bhaga. [Paras 22, 23][285-F-H; 286-A-B] Pranjivandas Tulsidas v. Dev Kuvarbai, Bomb. H.C., B. 131 – approved.

Tuljaram Morarji v. Mathuradas, Bhagvandas, and Pranjivandas ILR (1881) 5 Bom 662; Chotay Lall v. Chunnoo Lall and Another 1874 SCC online Cal 10 – referred to.

1.3 One of the sub-schools of Mitakshara- the Madras school of law tends to cover most of the southern part of India. It exercises its authority under Mitakshara law school. The Mitakshara school derives majorly from the running commentaries of Smritis written by ‘Yajnavalkya’. Other important sources governing the Mitakshara school are ‘Vyavastha Chandrika’ and most importantly Smriti Chandrika. The digest of ‘Yajnavalkya’ states that “What has been self-acquired by any one, as an increment, without diminishing the paternal estate, likewise a gift from a friend or a marriage gift, does not belong to the coheirs.” The purport of the text of ‘Vrihaspati’ in Vyavastha Chandrika is that the brother or the father and like would not take the property of a man who died without leaving a male, when the daughter is alive. By springing from the same limbs of the father, a daughter has been treated in Smriti Chandrika as equal to a son. .” ‘NARADA’ aware of the equitableness of the proposition that it is the daughter who should succeed on the failure of the son and the widow, says, “on failure of male issue, the daughter inherits, for she is equally a cause of perpetuating the race. [Paras 29, 30, 36, 37][287-D-E; 288-F-H]

1.4 ‘Mulla’ in his book Hindu Law (22nd Edition), while discussing the law prior to the Hindu Succession Act, 1956 says that there are two systems of inheritance amongst the Hindus in India, namely, Mitakshara system and Dayabhaga system. The Dayabhaga system prevails in Bengal, while the Mitakshara system is applicable to other parts of India. The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under the Mitakshara School. Sometimes consanguinity, and at the other times, religious efficacy has been regarded as the guiding principle. According to ‘Mulla’, Mitakshara recognises two modes of devolution of property, namely, survivorship and succession. The rules of survivorship apply to joint family property, and the rules of succession apply to property held in absolute severalty by the last owner. [Para 43][291-G-H; 292-A-B]

2.1 In Hindu Law by Mulla (22nd Edition) while determining the mode in which the property of a Hindu male, governed by Mitakshara Law, devolves on his death, the following propositions are to be noted :- (1) Where the deceased was, at the time of the death, a member of joint and undivided family, technically called coparcenary, his undivided interest Hindu Law by Mulla (22nd Edition) in the coparcenary property devolves on his coparceners by survivorship. (2) (i) Even if the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession according to the order given in § 43, and not to his coparceners; (ii) If the deceased was at the time of his death, the sole surviving member of a coparcenary property, the whole of his property, including the coparcenary property, will pass to his heirs by succession according to the order given in § 43; (iii) If the deceased was separate at the time of his death from his coparceners, the whole of his property, however acquired, will pass to his heirs by succession according to the order given in § 43; (3) If the deceased was re-united at the time of his death, his property will pass to his heirs by succession. [Para 44][292-C-G]

2.2 According to ‘Mulla’ under Mitakshara Law, the right to inherit arises from propinquity, i.e., proximity of relationship. Mitakshara divided blood relations into three classes, namely (a) Gotra-sapindas, i.e., Sapindas belonging to the same gotra or family as the deceased from 1st-7th degree; (b) Samanodaka, i.e., persons belonging to the same gotra or family as the deceased from 8th -14th degree; and (c) Bhinna gotra sapindas, i.e., Sapindas belonging to a different gotra or family from the deceased. ‘Gotra Sapindas’ and ‘Samanodaka’ are persons connected to the deceased by an unbroken line of male descendants i.e., all agantes; and Bhinna gotra sapindas are persons connected to the deceased through a female i.e, cognates such as a sister’s son. ‘Bhinna gotra sapindas’ are also known as ‘Bandhus’ in Mitakshara. These classifications while now archaic and delineated as class-I, classII, class-III and class- IV heirs under the Hindu Succession Act, 1956, are of importance with respect to the property in question considering its succession opened before the commencement of the Hindu Succession Act, 1956. [Paras 45, 46][292-G-H; 293-B-D]

2.3 The Gotra Sapindas of a person, according to Mitakshara are :- (i) His six male descendants in the male line; i.e., his son,

24 son’s son’s son, etc. (ii) His six male ascendants in the male line, the wives of the first three of them, and probably also of the next three; ie, his father, father’s father, father’s father’s father, etc, being Fl to F6 in the table and their wives, that is Ml to M6, being the mother, father’s mother, father’s father’s mother, etc.

(iii) The six male descendants in the collateral male line of each of his male ascendants; i.e., to X6 in the line of F1, being his brother, brother’s son, brother’s son’s son, etc; to X6 in the line of F2, being his paternal uncle, paternal uncle’s son, etc; to X6 in the line of F3, being his paternal grand-uncle, paternal granduncle’s son, etc.; to X6 in the line of F4; to X6 in the line of F5', and to x6 in the line of F6. (iv) His wife, daughter, and daughter’s son. The Sapinda relationship extends to seven degrees reckoned from and inclusive of the deceased and six degrees, if you exclude the deceased. The wife becomes a sapinda of the husband on marriage. The daughter’s son is not a gotraja sapinda, he is a bandhu because he is related to the deceased through a female. However, for the purpose of succession, he is ranked with gotraja sapindas. [Paras 47, 48][293-D-H; 294-A]

2.4 The Hindu Law of Inheritance (Amendment) Act, 1929 was the earliest Statutory legislation which brought the Hindu females into the scheme of inheritance. The 1929 Act introduced certain female statutory heirs which were already recognized by the Madras School, i.e., the son’s daughter, daughter’s daughter, sister and sister’s son in the order so specified, without making any modifications in the fundamental concepts underlying the textual Hindu Law relating to inheritance; only difference being that while before the Act, they succeeded as bandhus, under the Act, they inherited as ‘gotra sapindas’. The Mitakshara law also recognises inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law. Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub-schools of Mitakshara recognised only five female relations as being entitled to inherit namely - widow, daughter, mother paternal grandmother and paternal great-grand mother. The Madras subschool recognized the heritable capacity of a larger number of females heirs that is of the son’s daughter, daughter’s daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act, 1929. The son’s daughter and the daughter’s daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognized a number of other female heirs, including a half -sister, father’s sister and women married into the family such as stepmother, son’s widow, brother’s widow and also many other females classified as bandhus. Thus, it is abundantly clear that a daughter was in fact capable of inheriting the father’s separate estate. [Paras 49, 50][294-B-F]

Katama Natchiar v. Srimut Rajah Mootoo Vijaya

Raganadha Bodha Gooroo Sawmy Periya Odaya Taver (1863) 9 MIA 539; Sivagnana Tevar and Anr. v.

Periasami & Ors. (1818) 1 ILR Madras 312;

Ghurpatari & Ors. v. Smt. Sampati & Ors. AIR 1976 All 195 – referred to

3. The Hindu Law of Inheritance (Amendment) Act II of 1929 for the first time entitled the daughter’s daughter, subject to a special family or local custom, to succeed to the property of a male Hindu governed by Mitakshara Law. Daughter’s daughter then ranked 13th-B in the order of succession. The order of succession to the estate of a Hindu dying interstate and governed by Mitakshara Law are set out in Paragraph 43 of Mulla’s Principles of Hindu Law. Ancient text as also the Smritis, the Commentaries written by various renowned learned persons and even judicial pronouncements have recognized the rights of several female heirs, the wives and the daughter’s being the foremost of them. The rights of women in the family to maintenance were in every case very substantial rights and on whole, it would seem that some of the commentators erred in drawing adverse inferences from the vague references to women’s succession in the earlier Smritis. The views of the Mitakshara on the matter are unmistakable. Vijneshwara also nowhere endorses the view that women are incompetent to inherit. [Paras 59, 64, 65][301-E-G; 304-B-D]

Lal Singh & Ors. v. Roor Singh & Ors.55 Punjab Law Reporter 168; Gopal Singh & Ors. v. Ujagar Singh & Ors. AIR 1954 SC 579 : [1955] 1 SCR 86; Devidas & Ors. v. Vithabai & Anr (2008) 5 ML.LJ 296 – referred to.

4.1 Right of a widow or daughter to inherit the self-acquired property or share received in partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements. If a property of a male Hindu dying intestate is a self acquired property or obtained in partition of a co-parcenery or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals. In the case at hands, since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship. [Paras 66, 67][304-E-H]

4.2 Under the old customary Hindu Law, there are contradictory opinions in respect of the order of succession to be followed after the death of such a daughter inheriting the property from his father. One school is of the view that such a daughter inherits a limited estate like a widow, and after her death would revert back to the heirs of the deceased male who would be entitled to inherit by survivorship. While other school of thought holds the opposite view. This conflict of opinion may not be relevant in the present case inasmuch as since Kupayee Ammal, daughter of Marappa Gounder, after inheriting the suit property upon the death of Marappa Gounder, died after enforcement of Hindu Succession Act, 1956 which has amended and codified the Hindu Law relating to intestate succession among Hindus. The main scheme of this Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. The Act lays down a uniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies to every person, who is a Hindu by religion in any of its forms including a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or Arya Samaj and even to any person who is Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by religion. Section 14 of the Act of 1956 declares property of a female Hindu to be her absolute property. The legislative intent of enacting Section 14(I) of the Act was to remedy the limitation of a Hindu woman who could not claim absolute interest in the properties inherited by her but only had a life interest in the estate so inherited. [Paras 68, 69][305-A-F; 306-C-D]

4.3 Section 14(1) converted all limited estates owned by women into absolute estates and the succession of these properties in the absence of a will or testament would take place in consonance with Section 15 of the Hindu Succession Act, 1956. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub-Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter. Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act. [Paras 70, 71, 72][306-D; 307-G-H; 308-A-C]

4.4 The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source. Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death. In the present case the since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall be heirs and entitled to 1/5th share each in the suit properties. Applying the above settled legal proposition to the facts of the case at hands, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties. [Paras 73, 74, 77][308-C-F; 310-B-C]

State of Punjab v. Balwant Singh & Ors. 1992 Supp.

(3) SCC 108 : [1991] 1 suppl.SCR 458; Bhagat Ram

(dead) by LRs. v. Teja Singh (dead) by LRs.16 (2002) 1 SCC 210 – relied on.