Succession Act, 1925 – ss.24,25,26,33,35,47 and 48 – Original plaintiff and his wife (both Christians) purchased an immovable property – Both held equal share in the property – Wife invited her relative with his family to stay with them at their property – Wife expired, without leaving any issue – After some time, dispute arose between the plaintiff and his wife’s relative for possession – Wife’s relative asserted share in the property through succession – Thereafter, plaintiff and his wife’s relative both died and their legal representatives were brought on record – Legal representatives of plaintiff contended that neither relative of plaintiff ’s wife nor his children were the co-owners of the suit property and further even if they were related to wife of plaintiff they could not succeed to her share since sister of plaintiff’s wife was alive – Held: Plaintiff already held half share in the property by virtue of the sale deed and on death of his wife he succeeded half of the share in the property held by his wife as provided u/s.33(b) r/w. s.35 of the Act – Thus, he held 3/4th share in the entire property – Now, insofar as 1/4th share was concerned, wife of plaintiff did not leave behind any lineal descendant and left behind only her sister – Her sister was the only near kindred and preferential heir of the intestate and she would succeed to 1/4th share in the property – Legal representatives of wife’s relative being a distant kindred would not be entitled to succeed any share in the property since the intestate has left behind her real sister.
Allowing the appeal, the Court
HELD: 1. An immovable property was jointly purchased by the original plaintiff and his wife. Both of them held equal share in the entire property. Plaintiff’s wife invited a relative with his family to stay with them. Wife of plaintiff expired, leaving no issue. After some time, plaintiff asked his wife’s relative to vacate the property. However, wife’s relative asserted 1/4th share in the property as a distant kindred of plaintiff’s deceased wife. [Paras 1, 4 and 10][749-F-H; 750-C; 751-E-F]
2. Plaintiff and his wife were Christians. Therefore, Indian Succession Act, 1925 would be applicable to the succession of the property. Part V of the Act lays down the rules of succession to a person dying intestate. However, this Part does not apply to the property of any Hindu, Muhammedan, Buddhist, Sikh or Jaina which is evident from Section 29 of the Act. Chapter II of this Part lays down the rules of succession in cases of intestates other than Parsis. Section 32 states that the property of an intestate devolves upon wife or husband, or upon those who are of the kindred of the deceased in the order and according to the rules contained in the said Chapter.[Paras 9, 13][751-C-D; 752-F-G]
3. In the instant case, the intestate (wife of plaintiff) has left behind her husband and kindred. There are no lineal descendants as defined under Section 25. Sections 42 to 48 lay down the rules of distribution of property of an intestate where the intestate had died without leaving children or remoter lineal descendants and the rules of distribution are in the order of priority. [Para 15][753-C-D]
4. Plaintiff has already half share in the property by virtue of the sale deed dated. He being the husband would succeed half of the share in the property held by his wife as provided under Section 33(b) read with Section 35 of the Act. Thus, he holds 3/4th share in the entire property. [Para 16][753-D-E]
5. It is clear from s.47 that in case the intestate has not left a lineal descendant, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children taking equal shares only the shares which their respective parents would have taken if leaving at the intestate death. In the instant case, wife of plaintiff has left behind her sister. She has not left behind any lineal descendant. Her sister was the only near kindred and preferential heir of the intestate and she would have succeeded to 1/4 th share in the property. [Para 18][753-G-H; 754-A-B]
6. The rules of distribution are in the order of priority as contained in Sections 42 to 48. It is clear from scheme of the Act that when intestate has not left behind any lineal descendant and has only kindred, the nearer kindred excludes the distant kindred. The wife’s relative being a distant kindred is not entitled to succeed any share in the property since the intestate has left behind her real sister. [Para 20][754-D-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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