# SHAKUNTALA SAWHNEY v. KAUSHAL YA SAWHNEY ,4pril 4, 1979

- **Citation:** [1979] 3 S.C.R. 639
- **Court:** Supreme Court of India
- **Decided:** 1976-09-21
- **Bench:** V. R. KRISHNA lYER, V. D. Tulzapurkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shakuntala-sawhney-v-kaushal-ya-sawhney-4pril-4-1979-7658
- **Pages:** 5

## Headnote

639
Proc1?dt1re-Dury of Subordinate Court:1 in dealing with farnily dispute3.
The purpose of la\V and justice (Dharma) is promotion of cohesion and
no~ production of fission.
A judgment often possesses a sublime essence and a
humdrum component. The sublime· e1ement consists in the
optimi~tic endea·
vour to bring parties together so that the litigation may not cut them a-s
under, especiaJJy when they are blood relations like sisters. The -present appeal
in its happy conclusion, holds out the· higher lesson that hate and fight are
dis.solved by basic human fellnwsbip, even after bitter litigative struggle, if the
Bench and the Bair pursue consensual justice and bring into play conciliatory
processes and successfully persuade the parties to see reason and right beyond
bare law. If the effort succeeds, the court and counsel derive spiritual fulfilment
and get satisfactiori. The finest hour of justice arrives propitiously v.'hen parties,
despite falling apart, bury the hatchet and weave a sense of fellowship or
union. !640 Dl
The present case is not merely a just adjustment of a bitter litigation but
._ J.
a path-finder for the subordinate courts in dealing with family or like disputes.
[643 Bl
A
B
c
D
The text and tlie context and the app]ication of traditional rules of statutory
E
inttrpretation, in a given case, might leave the position in an
un~,atisfactory
dilemma of dual import. Even an equitable approach n1ay not necessu-rily help
reach a just solution because equity shifts as the situation varies. Contradictory
positions taken by different High Courts add to the difficulty and result in the
deleterious uncertainty of the law. The Supreme Court may resolve the conflict
by exercising its preference guided by the language and the milieu and follo\ving
the customary canons of statutory interpretation. While its decision \vill be
F
binding on account of Art. 141 of the Constitution it may still be fallib1e
becanse the intendment of Parliament is best brought out by legislative clarification in some cases. [640 H]
The appe1lant and the respondent were step-sisters-daughters of a common
father but of different mothers. The father who owned _vast propertie~ had
diea before the coming into force of the Hindu Succession Act 1956. The
G
respondent's mother who inherited her husband's estate died after the comiiig
into force of the 1956 Act. The High Court dismissed the appellant'~ claim
for a. half share in the propertie~ under~. 15(1)(a) of the Act. The ~pecific
point of claim, whether a son and daughter in the setting of s. 15(1)(a) of
the Act, includes stepMson and step-daughter or embraces only the son and
daughter of the deceased female propositus, has escaped
thei
Parliament's
attention while passing the legislation.
H
{A.t the Court's suggestion the parties came to a compromise assisted by
counsel on both sides.]
640
S"iJPREME COURT REPORTS
[1979] 3 s.c.R.
A
Tulzapurkar, J.
B
c
D
E
F
G
H
Parliament should clarify its intention regarding s. B(l)(a) of the Act.
CML APPELLATE JURISDICTION: Civil Appeal No. 348 of 1977.
Appeal by special leave from the Judgment and Order dated
21-9-1976 oi the Punjab & Haryana High Court in Letters Patent
Appeal No. 89/76.
W. C. Chopra for the appellant.
M. L. Varma for respondent No. 1.

## Text

SHAKUNTALA SAWHNEY
v.
KAUSHAL YA SAWHNEY
,4pril 4, 1979
[V. R. KRISHNA lYER AND V. D. TULZAPURKAR, JJ.]
639
Proc1?dt1re-Dury of Subordinate Court:1 in dealing with farnily dispute3.
The purpose of la\V and justice (Dharma) is promotion of cohesion and
no~ production of fission.
A judgment often possesses a sublime essence and a
humdrum component. The sublime· e1ement consists in the
optimi~tic endea·
vour to bring parties together so that the litigation may not cut them a-s
under, especiaJJy when they are blood relations like sisters. The -present appeal
in its happy conclusion, holds out the· higher lesson that hate and fight are
dis.solved by basic human fellnwsbip, even after bitter litigative struggle, if the
Bench and the Bair pursue consensual justice and bring into play conciliatory
processes and successfully persuade the parties to see reason and right beyond
bare law. If the effort succeeds, the court and counsel derive spiritual fulfilment
and get satisfactiori. The finest hour of justice arrives propitiously v.'hen parties,
despite falling apart, bury the hatchet and weave a sense of fellowship or
union. !640 Dl
The present case is not merely a just adjustment of a bitter litigation but
._ J.
a path-finder for the subordinate courts in dealing with family or like disputes.
[643 Bl
A
B
c
D
The text and tlie context and the app]ication of traditional rules of statutory
E
inttrpretation, in a given case, might leave the position in an
un~,atisfactory
dilemma of dual import. Even an equitable approach n1ay not necessu-rily help
reach a just solution because equity shifts as the situation varies. Contradictory
positions taken by different High Courts add to the difficulty and result in the
deleterious uncertainty of the law. The Supreme Court may resolve the conflict
by exercising its preference guided by the language and the milieu and follo\ving
the customary canons of statutory interpretation. While its decision \vill be
F
binding on account of Art. 141 of the Constitution it may still be fallib1e
becanse the intendment of Parliament is best brought out by legislative clarification in some cases. [640 H]
The appe1lant and the respondent were step-sisters-daughters of a common
father but of different mothers. The father who owned _vast propertie~ had
diea before the coming into force of the Hindu Succession Act 1956. The
G
respondent's mother who inherited her husband's estate died after the comiiig
into force of the 1956 Act. The High Court dismissed the appellant'~ claim
for a. half share in the propertie~ under~. 15(1)(a) of the Act. The ~pecific
point of claim, whether a son and daughter in the setting of s. 15(1)(a) of
the Act, includes stepMson and step-daughter or embraces only the son and
daughter of the deceased female propositus, has escaped
thei
Parliament's
attention while passing the legislation.
H
{A.t the Court's suggestion the parties came to a compromise assisted by
counsel on both sides.]
640
S"iJPREME COURT REPORTS
[1979] 3 s.c.R.
A
Tulzapurkar, J.
B
c
D
E
F
G
H
Parliament should clarify its intention regarding s. B(l)(a) of the Act.
CML APPELLATE JURISDICTION: Civil Appeal No. 348 of 1977.
Appeal by special leave from the Judgment and Order dated
21-9-1976 oi the Punjab & Haryana High Court in Letters Patent
Appeal No. 89/76.
W. C. Chopra for the appellant.
M. L. Varma for respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-A judgment often possesses a
sublim~ essence
and a humdrum component. The appeal before us, in its happy conclusion, bolds out the higher lesson that bate and fight are dissolved
by basic human fellowship, even after bitter litigative struggle, if the
Bench and 1he Bar pursue consensual justice, and bring into play conciliatory processes, and successfully persuade the parties to see reason
and right beyond bare law. If the effort succeeds, as it has in this
case, court and counsel derive spiritual fulfilment and get satisfaction.
Two sisters, apparently of the affluent bracket, with a common
father but different mothers, became estranged when one (the appellant) claimed a half share in the estate of the father, on whose death
before 1956, the respondent's mother inherited her husband's estate
but died after 1956, possessed of her husband's assets and her own.
When intestate succession to her opened the plaintiff-appellant claimed
a half share therein, founded on s. lS(l)(a) of the Hindu Succesoion Act (the Act, for ~hort). The High Court negatived the right to
a share as an heir, and, in doing so, preferred the interpretation of the
provision adopted by the then Mysore High Court (AIR 1962 Mysore
160) as against the meaning attached to the provision by the Allahabad
High Court ( 1968 Allahabad Law Journal 488). In fact, a plurality
of decisions has been brought to our notice indicating a plain conflict.
Interpretation is sometimes a projection of judicial inclination to do
justice.
The question of law canvassed before us turns on the meaning of
"son" and "daughter" in the setting of s. lS(l)(a) of the Act. Do
the expressmns include step-son and step-daughter or embrace only
the son and daughter of the deceased female propositus ? The text
and the context and the application of traditional rules of statutory
interpretation leave the position in an unsatisfactory dilemma of dual
import.
Even an equitable approach may not necessarily help reach
a just solution, because equity shifts as the situation varies, as illustra-
)
..
)
•
t
•
J
·•
I
SHAKUNTALA v. KAUSHALYA (Krishna lyer, J.)
641
tions present~d to us convinced us. Thus, the problem is a little tricky
and may wdl arise frequently. Contradictory positions already taken
by different High Courts add to the difficulty and result in the deleterious uncenainty of the law which may well incite, as it has done here,
close relations to quarrel over property. Blood may be thicker than
water, but wealth breaks all relations on a word of material value sets.
The Supreme Court may, when the High Courts disagree, resolve the
logomachic conflict by exercising its preference guided by the language
and the milieu and following the customary canons of statutory interpretation. While its decision will be binding on accounf of Article 141
of the Comtitution, it may still be fallible because the intendment of
Parliament is best brought out by legislative clarification. In the present instance, we have a hunch that the specific point of claim by stepsons and step-daughters to inherit to the estate of a deceased female
has escaped Parliament's attention while fashioning the legislation. This
is not surprising when we appreciate the push and pressure, hurry and
worry of Jaw-making modalities. In such a situation, when a sharp
conflict has shown up in the rulings of courts, the matter should not be
left in doubt or to forensic-linguistic exercises but must be settled by
legislative action on the part of Parliament, making explicit its policy
on this branch of the Hindu Succession Act. Inaction leads to more
litigation, speculation and compulsion for judicial legislation by the
Supreme Court. Drafting lapses are understandable but when differencei of interpretation come into the open, delay in correctional parliamentary performance is fraught with negative litigative potential .. We
are hopeful that the Indian draftsmen will disprove the old English
jingle :
l'am the parliamentary draftsman
I compose the country's laws
And of half the litigation
I'am undoubtedly the cause.
Tue sublime element which we adverted to in the b~gil:lning consists
A
B
c
D
F
in the optimistic endeavour to bring parties together so that the litigaG
tion may not cut them asunder, especially wh~n they are sisters. The
purpose of law and justice ( dharma) is promotion of cohesion and not
production of fission.
From this angle, as the arguments proceeded
and the legal tempers ftared up, we suggested that instead of escalating
estrangement the parties may as well compose themselves and their
quarrels and re-establish their sisterly relations making a some\\ hat
H
amicable adjustment of the !is before us. Viewing the case from this
perspective of tranquillity verms turbulence, but making it perfectly
-~
B
c
D
E
F
G
H
642
SUPREME COURT REPORTS
[1979] 3 s.c.1t.
plain that suggestions from the court towards this end will uot affect its
unbiased adjudicatory duty iu case it became necessary, we ventured
tentative solutions. Counsel took up the suggestion in the proper spirit
and we mu~t record our admiration for the strenuous effort made by
the young lawyer Shri M. L. Varma who did his best and successfully
persuaded his client who had won in the High Court to come down to
a compromise. We need hardly say that such a seasoned and senior
counsel like Shri Lal Narain Sinha could be counted upon to aid in the
process, and he did. The finest hour of justice arrives propitiously
when parties, despite falling apart, bury the hatchet and weave ~
sense of fellowship or reunion. In the present case, counsel today put
in a joint statement(') signed by the parties setting down the terms on
which they have agreed. We consider it a snccess of the finer human
spirit over its baser tendency for conflict.
Now we come to the hundrum part of the case. According to the
compromise some landed properties are to be made over to the appellant. Some cash is also to be paid to the appellant by the respondent.
The discretion to fix the sum has been left by the parties to us.
We
direct that the respondent shall pay a sum of Rs. 75,000/- to the
appellant within two weeks of the attachment of the moneys by the trial
court being withdrawn.
The plaintiff/appellant undertakes that she
will get the attachment withdrawn and we direct her to do so. We make
it further clear that this withdrawal of the attachment is to facilitate
the making of the payment of Rs. 75,000/- from out of the sum now
lying in bank deposit.
We also direct that landed property worth
Rs. 25 ,000 /- will in addition be made over to the appellant from out
of the suit prnperty. The further direction must justly follow-and we
make-that all the rents due from the properties allotted to the appellant under the joint statement prior to this date and subsequent to tbi&
date shall be collectible by the appellant. If they have already been
deposited in court, they will be withdrawn by the appellant. The actual
allocation of the lands under the joint statement will be made by Mr.
Prem Nath Randa within two months from today. Both sides agree
on Shri Handa being impartial and competent to make the said allotment. His allotment once made will not be challengeable. Shri Randa
pursuant to this direction will make the allocation and put in a statement to that effect in the trial court and that statement will be deemed
to be part of this decree.
(1) On 2-4-79 an incohate compromise purporting to be a full-fledged compromise had been put into court by counsel signed by both sides, but the joint
st,.._tement of settlement put in today is in complete
sllpersession of the
· earlier one.
)
•
J
•
+
•
SHAKUNTALA v. KAUSHALYA (Krishna Iyer, !.)
643
We need hardly mention-it is so obvions-that the land that remains will belong entirely to the respondent and there will be no more
clajms from the appellant on the respondent in regard to the estate of
her step-mother, or in respect of its income or otherwise.
Before we part with the case we should like to emphasise that having regard to the merits of the claim, this is not merely a just adjustment of a bitter litigation but a path-finder for the subordinate courts
in dealing with family or like disputes. Indeed, we have had to take
the lead in giving shape to the settlement as it has finally emerged.
Counsel on both sides have also, statesman-like, assisted in producing
the settlement. We command this exampb to the judiciary and to the
Bar and reinforce it with what Gandhiji has recorded in his autobiography:
"I have learnt the true practice of law. I had learnt to
find out the better side of human nature and to enter men's
hearts. I realised that the true function of a lawyer was to
unite parties driven asunder.
The lesson was so indelibly
burnt into me that a large part of my time during the twenty
years of my practice as a lawyer was occupied in bringing
about private compromises of hundreds of cases.
I
lost
nothing, thereby-not even money, certainly not my soul."
We allow the appeal in part but entirely in terms of the compromise which we consider clearly reasonable and just. There will be no
order as to costs.
TULZAPURKAR, J.-Dccree in terms of compromise without costs.
~
Parliament should clarify its intention regarding s. 15(1)(a).
P.B.R.
Appeal allowed in part .
c
D
E