Devinder Singh vs Bakhtawar Singh

R.C. Kapila, F.C.

This is a reference dated the 22nd January, 1979 by the Commissioner, Patiala recommending that order dated 27the September, 1976 of Assistant Collector II Grade, Barnala sanctioning mutation No. 4525 in favour of Bakhtawar Singh and Devinder Singh in respect of the estate of Bhagwan Kaur deceased jointly in equal shares be set aside. The facts of the case have been given in the reference of the Commissioner which may be read as part of this order.

The rule of succession relating to a female Hindu, dying intestate, has been laid down in section 15 of the Hindu Succession Act which is reproduced below for facility of reference :

``15. (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 subsection (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 predeceased son or daughter) not upon the other heirs referred to in subsection (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 fatherinlaw 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 subsection (1) in the order specified therein, but upon the heirs of the husband."

The counsel for the petitioner supports the reference and pleads that the petitioner is the predeceased daughter's son of Bhagwan Kaur and the inheritance of the estate of Bhagwan Kaur is governed by section 15(2)(a) of Hindu Succession Act reproduced above and that the petitioner being the pre deceased daughter's son is the only person entitled to succeed to her estate and that the lower courts have committed an error in interpreting section 15(2)(a) of the Act. He, therefore, pleads that the recommendation on the other hand pleads that Assistant Collector has rightly sanctioned the mutation of inheritance of Bhagwan Kaur in accordance with the provisions of section 15(1)(a) of the Act which lays down that where a female Hindu dies intestate the property shall devolves firstly upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. He, therefore, says that the mutation was sanctioned rightly and strictly in accordance with law. He has also quoted the ruling A.I.R. 1974 A.P. page 266 in support of his contention.

I have heard the learned counsel for both parties and have gone through the record. It does seem possible to interpret the provisions of section 15(1) in two mutually contradictory ways and it is, therefore, necessary to first try and understand the legal essence of these provisions. In my view section 15(2) has been provided in order to deal with property of a female Hindu who has inherited the property from her father or mother. In such a case the property should go to her son and daughter (including the sons and daughters of any predeceased son or daughter) and if such heirs are not there, it should revert to heirs of her father and mother. Quite clearly if son or daughter are available, the property is to go to them. Section 15(1) deals with the property of a female Hindu which is not derived from any specified source; and this property is to go to son and daughter (including the children of any predeceased son or daughter) and the husband. But section 15(2) deals with property of female Hindu which has been inherited from her father or mother or from her husband or fatherinlaw; in the first case in the absence of her son and daughter or children of any predeceased son and daughter the property should revert to her children or grandchildren it should revert to the heirs of the husband. I, therefore, agree with the recommendation of the learned Commissioner that in this case the inheritance of Bhagwan Kaur having been derived from her mother is to be decided under section 15(2) and is to go to her predeceased daughter's son and not to her husband. I, therefore, accept the reference.

To be communicated.