Andhra HC (Pre-Telangana)
Smt. B. Ananthamma (Died) Per Lrs. vs Smt. P. Balavva And Anr. on 9 October, 2007
Equivalent citations: 2008(3)ALD143
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This Second Appeal is filed by the defendants 1 and 2 in O.S. No. 1145 of 1987 in the Court of Principal District Munsif, Karimnagar. The suit was filed by the 1st respondent against the appellants and respondent No. 2. For the sake of convenience, the parties are referred to as arrayed in the suit.
2. The 1st defendant is the wife of late Mallaiah. The plaintiff and defendants 2 and 3 are their daughters. Mallaiah died in or about the year 1947, by which time the plaintiff was in womb. The marriage of the eldest daughter, the 2nd defendant was performed by late Mallaiah during his lifetime. The marriage of 2nd daughter, i.e. 3rd defendant was performed after his death. The 2nd defendant and her husband were living in the house of the 1st defendant. The marriage of the plaintiff was performed, long after the death of Mallaiah. On account of the death of her husband, plaintiff lived for some time along with her mother, the 1st defendant. However, due to differences, she started living separately. She filed the suit for partition, stating that in spite of repeated demands, her mother and eldest sister refused to accede to her request. A common written-statement was filed, on behalf of the defendants 1 and 2, i.e. the mother and eldest sister of the plaintiff. It was pleaded that the suit schedule property was the self-acquisition of Mallaiah, and that the husband of the 2nd defendant was taken as illatom son-in-law. The husband of the 2nd defendant is said to have performed the marriage of the plaintiff by giving substantial dowry. It was pleaded that on death of Mallaiah, the property held by him, devolved upon defendants 1 and 2.
3. During the pendency of the suit, the 1st defendant died. It was pleaded that, she executed a Will dated 12-02-1988 in favour of the sons of the 2nd defendant, bequeathing the suit schedule property in their favour. The 3rd defendant filed a written-statement, supporting the plea of the plaintiff. The trial Court dismissed the suit on 28-10-1994, holding that the 1st defendant alone succeeded to the estate of Mallaiah, when he died in the year 1947, and thereafter her limited estate became enlarged into an absolute one, by operation of Section 14 of the Hindu Succession Act (for short, 'the Act'). The plaintiff filed A.S. No. 4 of 1995 in the Court of III Additional District & Sessions Judge, Karimnagar. The appeal was allowed through its judgment dated 16-12-1996, and a preliminary decree was passed in the suit. Hence, this second Appeal. Sri Y. Srinivasa Murthy, learned Counsel for the appellants submits that Mallaiah died much before the Hindu Succession Act came into force, and according to the Customary and Shastric Law, prevailing in the year 1947 in the area, the 1st defendant succeeded to the estate of the deceased, to the exclusion of plaintiff and defendants 2 and 3. He contends that even assuming that the succession of the 1st defendant, to the estate of Mallaiah, was limited in any manner, the same got enlarged by operation of Section 14 of the Act. He further submits that the trial Court applied the correct principles of Customary and Textual Law of Succession, and there was no basis for the lower Appellate Court in reversing the judgment of the trial Court. Sri Ghanshyam Das Mandhani, learned Counsel appearing for the respondents, on the other hand, submits that the Hindu Women's Rights to Property Act, 1937 (for short 'the 1937 Act') was adopted in the erstwhile Hyderabad State, much after the death of Mallaiah and the succession to his estate has to take place according to the Textual and Customary Law. Placing reliance upon various paragraphs of Mayne's Hindu Law, and Principles of Dharmshastra, he contends that, in the absence of sons, the estate of a Hindu male, in this part of the country, was to devolve equally upon his widow, and daughters. He submits that the plea of adoption, or illatom of the husband of the 2nd defendant, was not at all established through cogent evidence, and, at any rate, the same did not have the effect of taking away the right of succession of the plaintiff. Mallaiah died leaving behind him his widow, and three daughters. He performed the marriage of the eldest daughter, and the marriage of other daughters took place, after his death. The relationship of the parties is not in dispute. The plaintiff demanded partition of the suit schedule property, into four equal shares, and allotment of one each, thereof, to herself, and defendants 1 to 3. The 3rd defendant sailed with her. The suit was resisted mainly by the 2nd defendant and her husband. They sought to exclude the plaintiff from succession to Mallaiah, on various grounds. The trial Court framed only one issue, viz., whether the plaintiff is entitled to 1/4th share of the plaint A, B, and C schedule properties?
4. The plaintiff deposed as PW-1, and one of their relations deposed as PW-2. No documentary evidence was adduced by her. The 2nd defendant deposed as DW 1, and her husband as DW-2. One Mr. Hari Kishtaiah deposed as DW-3. The 3rd defendant and her husband deposed as DWs 4 and 5, respectively. On behalf of the defendants 1 and 2, two pahani patrikas, for different years, were filed as Exs.B-1 and B-2. Since the dispute is about the succession, the documentary evidence is hardly of any help. The trial Court dismissed the suit, and the lower Appellate Court reversed the judgment and decree of the trial Court.
5. The only issue that arises for consideration in this Second Appeal is, as to the nature of succession to a Hindu male, citizen of erstwhile Hyderabad State, who died in the year 1947, without sons, and leaving behind him the widow, and daughters?
6. It is not in dispute that the 1937 Act was made applicable to the erstwhile State of Hyderabad only in the year 1952, and it has no application to that part of the State, earlier thereto. Apart from stipulating the principles of succession, the Hindu Succession Act had enlarged the limited estate of a Hindu woman, into an absolute one, under Section 14 thereof. Operation of Section 14 of the Act is also not of much relevance, to the present controversy.
7. Before undertaking further discussion on the matter, the plea of adoption, or illatom son-in-law, taken by the appellants, needs to be examined. The 2nd defendant deposed as DW-1 and pleaded that her husband, DW-2 was taken as illutam son-in-law. However, in his evidence, DW-2 pleaded that he was taken in adoption by Mallaiah, during his lifetime. None of them have filed any documents, which would throw light on this issue. The best person to speak about these aspects was, the 1st defendant. For reasons best known to her, she did not choose to depose. DW-1, who supported her mother, did not choose to take any steps, to examine her. DWs 4 and 5 have supported the claim of the plaintiff. The only other witness i.e. DW-3, did not speak anything about the alleged adoption of DW-2 is being taken as illatom son-in-law, by late Mallaiah. Therefore, this plea was rightly rejected by the lower Appellate Court. The trial Court has undertaken extensive discussion about the applicable principles of Hindu Law, to the parties herein, as on the date of death of Mallaiah. Reference to various paragraphs of Mulla on Hindu Law, was made and ultimately it was held that a daughter comes next to the widow, and takes a share in the property, only in default of the widow. It was observed that, an exception can be carved out, wherever any custom to the contrary is prevailed. Reference was also made to Raghavachariar's Hindu Law, while pointing out that a daughter of a Hindu male can succeed to the estate, after the death, or remarriage of the widow, or all the widows, if they were more than one. It proceeded on the assumption that Section 14 of the Act is retrospective in operation, in the context of enlarging the limited estate of a widow, into an absolute one.
8. Placing reliance upon the judgments of the Allahabad High Court, rendered in the year 1957 and 1958, the lower Appellate Court, on the other hand, took the view that the law, that prevailed prior to 1956, provided for devolution of the estate of a Hindu male, who died without sons, upon his widow and daughters, simultaneously. Since there was no enacted law, at the relevant point of time, one has to be guided by the relevant principles of Textual and Shastric law. One has to recognize that there is no uniformity in the various texts, on this aspect. Opinions varied radically. Some suggested that in the absence of any sons, the estate of a male Hindu would devolve upon his widow, daughters, parents etc., by survivorship. Others recognized that a daughter would succeed to the estate, along with the widow, in such cases.
9. Yet others placed daughters on a higher pedestal, in comparison to a widow. Yagyavalkya's text, which constituted the basis for Mithakshara Law, is to the effect that the wife, daughters, both parents, brothers, gotrajas, bandhus, a pupil, and fellow student, would inherit the estate of a Hindu male, who departed for heaven, leaving no putra. Under these categories of heirs, one would inherit on failure of the preceding category. Brihaspati and Katyayana have also subscribed to the same view. Kautilya, in his Arthshastra, however, propounded that, in the absence of sons, the daughters, born to a man, of approved marriage; would succeed to the estate. The right of a widow of such a male, was recognized, if only her remarriage was prohibited, and was thereby treated as nebulous or uncertain (See para 521 Mayne's Hindu Law). Manu who is generally understood to have belittled the status of a woman in the family structure, had in fact, accorded a greater primacy to daughters. The following sloka in one of his treatises, Nirukt, makes this position clear:
Avisheshena putranam dayoh bhavathi Dhamathaha! Mithunanam visargadau nanuhu : swayambhuvo brahvith.
10. Its liberal translation means, that Manu treated sons and daughters on par, in the matter of inheritance. The following verse in Taittiriya Barahman, adds strength to it:
Manuhu putrebhyo dayam vyabhaja dityavisheshena shruyathe.
11. It means that, Manu distributed his wealth among his issues, i.e. sons and daughters, equally. (See principles of Dharmshastra, by B.N. Chobe, Purushottamdas Memorial Series No. 2 pages 26 and 27) When there is division of opinion among the authorities, on a particular aspect, the task of a Court certainly becomes difficult, in determining the issue. Fervent search needs to be made of the factors, that would help in accepting one of the different opinions. Contemporary practice, on the one hand, and advancement of the common interests, on the other hand, would certainly provide valuable amount of guidance, in this regard.
12. The primacy accorded to the different categories of legal heirs in the enactments that are in force in the area at or about the relevant point of time can be treated as vital indicator. In the erstwhile State of Hyderabad, an important piece of legislation, viz., Hyderabad Tenancy and Agricultural Lands Act, which was since renamed as A.P. (Telangana Area) Tenancy and Agricultural Lands Act; was enacted long before the Hindu Succession Act came into existence.
13. It dealt with the rights of tenants of agricultural lands and the matters relating thereto. Apart from conferring rights upon a protected tenants, the Act made such rights inheritable. Section 40 reads as under:
Section 40 : Rights of protected tenant heritable:
(1) All rights of a protected tenant shall be heritable.
(2) If a protected tenant dies, his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death and such heirs may, notwithstanding anything contained in this Act, sub-divide inter se according to their shares the land comprised in the tenancy to which they have succeeded.
(3) If a protected tenant dies without leaving any heirs, all his rights shall be extinguished.
Explanation : The following persons only shall be deemed to be the heirs of a protected tenant for the purposes of this section:
(a) his legitimate lineal descendants by blood or adoption;
(b) in the absence of any such descendants, his widow for so long as she does not remarry. (4) The interest of a protected tenant in the land held by him as a protected tenant shall from sixty per cent of the market value of all the interests in the land and that of the landholder and of persons claiming under him shall be limited to the remaining forty per cent.
14. From a perusal of the explanation, it is evident that all the legitimate lineal descendants i.e. the sons and daughters of a protected tenant are conferred with the right to inherit the tenancy. The right of a widow was recognized only in the absence of lineal descendants. This provision would certainly provide guidance, in the matter of understanding the relative importance accorded to the daughters in comparison to the widow of a deceased male, in the context of inheritance. It may be noted that the daughters inherit the rights of a deceased protected tenant, along with the sons. When such is the predominant status, accorded to daughters, in the matter of inheritance, it cannot be said that the 1st defendant succeeded to the estate of Mallaiah, to the total exclusion of her daughters, i.e. the plaintiff, and defendants 2 and 3.
15. Secondly, when there is division of opinion, in the matter of inheritance, or conferment of rights, the Courts would, and in fact, have to lean, in favour of the one, which does not exclude a particular category in the same class. Son, daughter and widow of a male Hindu are treated as Class-I heirs, both under the Hindu Succession Act and under the Customary Law. Other categories are either representative or analogous. Burden rests upon the one, who pleads for exclusion of any category in the same class, from inheritance.
16. The structure of the Indian society rests upon the foundation of a strong family. Primacy accorded to one member of the family is not to be at the cost of, making the other, a destitute. Wherever law provided, that a senior member of the family is entitled to hold the property, it is for the common good. The ultimate distribution among the members, has to take place according to degrees of consanguinity and not the total exclusion of the kin of the deceased. However, one has to look into these aspects only when the law is silent on these aspects.
17. The net result of the discussion is that, the 1st defendant cannot be said to have inherited to the estate of late Mallaiah, to the exclusion of their daughters, the plaintiff, and defendants 2 and 3. Another subsidiary issue, which needs to be considered is, in the context of the Will, said to have executed by the 1st defendant, on 12-02-1988, bequeathing her properties in favour of two sons of the 2nd defendant, who are impleaded as appellants 3 and 4, in this Second Appeal. By virtue of the preliminary decree, the properties are to be divided into four equal shares. Since the 1st defendant died, in the normal course, the extent of shares become enlarged, to 1/3rd each, in favour of plaintiff, and defendants 2 and 3. However, since a Will is propounded, the validity of the same needs to be considered in the final decree proceedings. If the Will is upheld, the division of the property shall take place, as directed by the preliminary decree, passed by the lower Appellate Court, i.e. division of property into four shares; allotment of one share each to the 1st defendant and her three daughters; and the legatees being made entitled to the share of the deceased 1st defendant. On the other hand, if it is not accepted, the suit schedule property shall be liable to be divided into three equal shares, and one of each, shall be allotted to the plaintiff and defendants 2 and 3.
18. For the foregoing reasons, the Second Appeal is dismissed. Before parting with the case, this Court intends to place on record, its appreciation on the endeavour made by the Courts below, in arriving at a just and proper conclusion, and the assistance rendered to this Court, by the counsel for the parties. Though the trial and lower Appellate Courts differed with each other, the quality of discussion and the effort made by them, to arrive at the just and proper conclusion; is remarkable.
19. There shall be no order as to costs.