# ARUNACHALA GOUNDER (DEAD) BY LRS v. PONNUSAMY AND ORS

- **Citation:** [2022] 1 S.C.R. 269
- **Court:** Supreme Court of India
- **Decided:** 2022-01-20
- **Case number:** Civil Appeal No. 6659 of 2011
- **Bench:** S. Abdul Nazeer, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arunachala-gounder-dead-by-lrs-v-ponnusamy-and-ors-36115
- **Pages:** 42

## Headnote

Hindu Succession Act, 1956: Self acquired property of male
Hindu dying intestate - Right of daughter of such male Hindu to
inherit - Held: 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 male Hindu despite the family being
in state of jointness upon his death intestate, his sole surviving
daughter will inherit the same by inheritance and the property shall
not devolve by survivorship.
Hindu Succession Act, 1956: Scheme of the Act - Held: 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, interalia, 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.
Hindu Succession Act, 1956: s.14 - Absolute right of female
Hindu - Held: s.14 of the Act of 1956 declares property of a female
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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,
Pa

## Text

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[2022] 1 S.C.R. 269
269
ARUNACHALA GOUNDER (DEAD) BY LRS.
v.
PONNUSAMY AND ORS.
(Civil Appeal No. 6659 of 2011)
JANUARY 20, 2022
[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]
Hindu Succession Act, 1956: Self acquired property of male
Hindu dying intestate - Right of daughter of such male Hindu to
inherit - Held: 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 male Hindu despite the family being
in state of jointness upon his death intestate, his sole surviving
daughter will inherit the same by inheritance and the property shall
not devolve by survivorship.
Hindu Succession Act, 1956: Scheme of the Act - Held: 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, interalia, 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.
Hindu Succession Act, 1956: s.14 - Absolute right of female
Hindu - Held: s.14 of the Act of 1956 declares property of a female
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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
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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
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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
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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
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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,
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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
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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.
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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
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY
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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]
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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.
Case Law Reference
[1955] 1 SCR 86
referred to
Para 61
[1991] 1 suppl.SCR 458
relied on
Para 75
(2002) 1 SCC 210
relied on
Para 76
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6659 of
2011.
From the Judgment and Order dated 21.01.2009 of the High Court
of Judicature at Madras in A.S. No.351 of 1994.
P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, Ms. V.
Keerthana, Anubhav Chaturvedi, Pankaj Agarwal, Advs. for the
Appellants.
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY
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K. K. Mani, Ms. T. Archana, Advs. for the Respondents.
The Judgment of the Court was delivered by
KRISHNA MURARI, J.
1. Challenge has been laid in this Civil Appeal to the judgment and
order dated 21.01.2009 passed by the High Court of Judicature at Madras
(hereinafter referred to as 'High Court') dismissing a regular First Appeal
being A.S. No. 351 of 1994 filed under Section 96 of the Code of Civil
Procedure, 1908, challenging the judgment and decree dated 01.03.1994
rendered by the Trial Court dismissing Original Suit No. 295 of 1991 for
partition filed by the appellant herein, claiming 1/5th share in the suit
properties.
2. The following genealogy of the parties is necessary to be taken
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note of for appreciating their claims and contentions :-
3. Suit for partition was filed by Thangammal, daughter of
Ramasamy Gounder, claiming 1/5th share in the suit property on the
allegations that the plaintiff and defendant nos. 5 and 6, namely, Elayammal
and Nallammal and one Ramayeeammal are sisters of Gurunatha
Gounder, all the five of them being the children of Ramasamy Gounder.
The said Ramasamy Gounder had an elder brother by the name of
Marappa Gounder. Ramasamy Gounder, predeceased his brother
Marappa Gounder who died on 14.04.1957 leaving behind the sole
daughter by the name of Kuppayee Ammal who also died issueless in
1967. Further case set up by the plaintiff/appellant was that after the
death of Marappa Gounder, his property was inherited by Kuppayee
Ammal and upon her death in 1967, all the five children of Ramasamy
Gounder, namely, Gurunatha Gounder, Thangammal (Original Plaintiff
now represented by legal heir), Ramayeeammal, Elayammal and
Nallammal are heirs in equal of Kuppayee and entitled to 1/5th share
each.
4. Gurunatha Gounder, died leaving behind defendant nos. 1 to 4
(Respondents herein) as heirs and legal representatives. Ramayeeammal
died leaving behind defendants 7 to 9. The plaintiff-appellant,
Thangammal, died leaving behind, appellant nos. 1, 3 and 4 herein and
Appellant no. 1, Arunachala Gounder, since having died is represented
by her legal representatives appellant no. 1, Venkatachalam and appeallant
no. 2, A. Mottaiyappan.
5. The defence set up by the defendant-respondents was that
Marappa Gounder died on 11.05.1949 and not on 14.04.1957 as alleged
by the plaintiff-appellant and as per the provisions of Hindu Law prevailing
prior to 1956, Gurunatha Gounder was the sole heir of Marappa Gounder
and accordingly, he inherited the suit properties and was in possession
and enjoyment of these properties and after his death the respondents
herein, were continuing as lawful owners.
6. It is an undisputed fact between the parties that the property in
question i.e., the suit property, was independently purchased by Marappa
Gounder in the year 1938 through the process of a Court auction and
thus, it was his independent property. However, there was a issue between
the parties in respect of the date of death of Marappa Gounder. The
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plaintiff - appellant asserted the date of death as 14.04.1957, whereas
the defendant-respondent pleaded the date of death as 15.04.1949.
7. The Trial Court after considering the evidence brought on record
of the case by the parties concluded that Marappa Gounder died on
15.04.1949 and thus, the suit property would devolve upon the sole son
of deceased Ramasamy Gounder, the deceased brother of Marappa
Gounder by survivorship and the plaintiff-appellant had no right to file
the suit for partition and, accordingly, dismissed the suit.
8. The findings recorded by the Trial Court particularly in respect
of the date of death of Marappa Gounder in 1949 was confirmed by the
High Court in the first appeal and the decree dismissing the suit for
partition was affirmed holding that the property would devolve upon the
defendant by way of survivorship.
9. We have heard Shri P.V. Yogeswaran, learned counsel for the
appellant and Shri K.K. Mani, learned counsel for the respondents.
Arguments on behlaf of Appellants
10. Shri P.V. Yogeswaran, learned counsel for the appellant submits
that since the property was purchased through Court auction sale by the
Marappa Gounder on 15.12.1938, hence, it is his independent property
and it was never considered as a joint family property, as such on death
of Marappa Gounder, this property would devolve by succession upon
his daughter, Kupayee Ammal, who died in the year 1967. He further
submitted that under the law of Mitakshara, the right to inheritance
depends upon propinquity i.e., proximity of relationship. Since, the
daughter has closer proximity of relationship, she would inherit the
property from the father instead of the father's brother's son and daughter.
11. He further points out that there are three classes of heirs
recognized by Mitakshara, namely, (a) Gotrajasapindas, (b) Samanodakas
and (c)Bandhus. The first class succeeds before the second and the
second succeeds before the third. To support the contentions, he made a
reference to Mulla Hindu Law 23rd Edition. He also submitted that under
the Hindu Law, a daughter is not disqualified to inherit in separate property
of her father and when a male Hindu dies without a son leaving only
daughter, his separate property would devolve upon the daughter through
succession and the property will not devolve upon brother's son through
survivorship and the Courts below have wrongly applied the principles
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of Hindu Law and dismissed the suit. In support of his contention, he
cited references from various commentaries which we shall deal with at
appropriate place.
Arguments on behlaf of Respondents
12. Shri K.K. Mani, learned counsel representing respondents
submitted that the property in question was purchased by Marappa
Gounder in Court auction sale out of the family funds and thus, it was a
joint property, and on his death, since he had no male heir, the defendant
as a coparcener succeeded to the estate. He further submitted that the
Trial Court after scrutinizing the evidence brought on record by the parties
came to the conclusion that the paternal uncle of plaintiff, Marappa
Gounder, died prior to the enforcement of Hindu Succession Act, 1956
and, therefore, the plaintiff and other sisters of the plaintiff were not the
heirs as on the date of death of Marappa Gounder in the year 1949 and
thus, plaintiff was not entitled to the partition of 1/5th share in the suit
properties, and thus, the suit was rightly dismissed. He further submits
that when the date of death of Marappa Gounder, was confirmed to be
in the year 1949, the Succession to his properties would open in the year
1949 when Kupayee Ammal, the daughter of Marappa Gounder, was
not having any right to inherit the property left by her deceased father.
The only heir available at the time of death of Marappa Gounder was
Guranatha Gounder, the son of Ramasamy Gounder, who was none other
than the father of the Defendants 1 to 4. Once the properties of Marappa
Gounder devolved upon Guranatha Gounder, it became his property and,
therefore, it could not be made the subject matter of the partition after
the promulgation of Hindu Succession Act, 1956. He also submitted that
neither any issue was framed nor any evidence was led by the plaintiffappellant throughout the entire proceedings to establish that property
purchased in the Court auction in the year 1938 was a self-acquired
property of Marappa Gounder and thus, it would be presumed that it
was a joint family property leaving no rights in his daughter to inherit the
same.
13. We have considered the arguments advanced by the learned
counsel for the parties and with their assistance perused the record of
the case and the various texts and commentaries pertaining to Hindu
Law.
14. Insofar as, the date of death of Marappa Gounder being
15.04.1949, it is a finding of fact affirmed by the two fact-finding Courts
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY
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based on appreciation of material evidence existing on the record of the
case and is not liable to be interfered with and we proceed to decide the
issue between the parties taking the date of death of Marappa Gounder
as 15.04.1949.
15. The other aspect of the matter is whether the suit property
was exclusively purchased by Marappa Gounder in the Court auction
and was his separate property or it was purchased out of the joint family
fund making it a joint family property. It is correct that neither any issue
was framed by Trial Court in this regard nor any evidence was led by
the parties nor any finding has been returned. However, in view of the
admission made by the defendant in para 3 of the written statement that
suit properties are absolute properties of Marappa Gounder, he having
purchased the same in a Court auction sale on 19.09.1938, there was
hardly any necessity to frame any issue in this regard, once the fact was
admitted in written statement.
16. It may be relevant to extract the relevant part of paragraph 3
of the written statement which reads as under :-
"3. It is true that the suit properties are the absolute properties
of the Marappa Gounder, he having purchased the suit
properties in the Court auction sale on 19.09.1938."
17. Furthermore, the defendants themselves have nowhere pleaded
that purchase of suit property was made by Marappa Gounder out of
the joint family funds. There is a clear admission in the written statement
that property in question was the absolute property of Marappa Gounder,
he having purchased the same in the Court auction sale.
17.1 In view of above facts, the arguments advanced by learned
counsel for the respondent, in this regard, has no force and not liable to
be accepted.
18. In the backdrop of the above facts, the primary issue which
arises for our consideration is with respect to the right of the sole daughter
to inherit the self-acquired property of her father, in the absence of any
other legal heir having inheritable rights before the commencement of
the Hindu Succession Act, 1956 or in other words, whether such suit
property will devolve on to the daughter upon the death of her father
intestate by inheritance or shall devolve on to father's brother's son by
survivorship.
19. The determination and adjudication of the issue depends upon
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the answers to the following questions :-
1)
What is the nature of the property and what would be the
course of succession if it is a separate property as opposed
to undivided property?
2)
Whether a sole daughter could inherit her father's separate
property dying intestate? And if so -
3)
What would be the order of succession after the death of
such daughter?
20. To answer these questions, we are required to delve into the
concepts of old Hindu Law and its application. It is also imperative to
look into it's origin and sources.
Sources of Hindu Law
21. 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 in
contradiction to Shrutis (that which is remembered). 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.
22. 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 vide 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.
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY
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23. 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"1. 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.
24. Reference may also be made to another observation at Page165, where it is stated as under :-
"Failing male issue, therefore, a widow takes the self- acquired
property of her husband. No doubt, on failure of male issue
and a widow, the daughter would take."
25. The commentary also refers to a case of Pranjivandas
Tulsidas Vs. Dev Kuvarbai, 1 Bomb. H.C., B. 131, wherein a Hindu
owning separate property died without a male issue, leaving behind - a
widow, four daughter and a brother and male issues of other deceased
brothers. The Court observed that the widow was entitled to a life estate
in the property and subject to her interest the property would devolve to
the daughters absolutely in preference to the brother and the issue of the
deceased brothers.
26. References to this case have also been made in numerous
reported as well as unreported cases; as in the case of Tuljaram Morarji
vs.