# SMT. KASTURI DEVI v. DEPUTY DIRECTOR OF CONSOLIDATION & ORS

- **Citation:** [1977] 2 S.C.R. 25
- **Court:** Supreme Court of India
- **Decided:** 1976-11-04
- **Case number:** Civil Appeal No. 789 of 1975
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-kasturi-devi-v-deputy-director-of-consolidation-ors-7034
- **Pages:** 3

## Headnote

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25
SMT. KASTURI DEVI
A
v.
DEPUTY DIRECTOR OF CONSOLIDATION & ORS.
November 4, 1976
[Y. V. CHANDRACHUD, P. K. GOSWAMI AND S. MU:RTAZA f,\ZAL ALI,
B
JJ.]
Hindu Succession A.ct, 1956-Whether remarriage would bar a mother fr•m
succeeding as son's heir.
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On the demise of Karuna, ther were two rival claims for inheritance to
his property.
One by the appellant who claimed it as bis widowed mother,
and the other by his father's brother who contended that the appellant
had
remarried and was thereby barred from succeeding as Karna's heir. After the
consolidation officer had decided against her, and the settlement officer, Etah
Camp, Aligarh, in her favour, the Deputy Director of Consolidation decided a
revision petition against the appellant holding that her remarriage excluded her
from the inheritance.
Thereafter, the appellant unsuccessfully fikd a writ
petiion before the High Court.
Allowing the appeal, the Court
HELD : Kasturi claimed inheritance not as a widow of her husband Madhua
but as the mother of Karna. We are entirely in agreement with the view that
"unchastity of a mother is no bar to her succeeding as heir to her son, nor
does her remarriage constitute any such bar". Under the Hindu Jaw, the bar
of inheritance would not apply to a mother, as it would to a widow. [27B-D]
'Hindu Law' 14th Edn. clause iii) p. 116 followed.
CivrL APPELLATE JURISDICTION: Civil Appeal No. 789 of 1975.
(Appeal by Special Leave from the Judgment and Order dated
25.2.1975 of the Allahabad High Court in Civil Misc. Writ No. 3756
of 1971).
E. C. Agarwala, for the Appellant.
B. Datta, for Respondent No. 2.

## Text

)
. I
25
SMT. KASTURI DEVI
A
v.
DEPUTY DIRECTOR OF CONSOLIDATION & ORS.
November 4, 1976
[Y. V. CHANDRACHUD, P. K. GOSWAMI AND S. MU:RTAZA f,\ZAL ALI,
B
JJ.]
Hindu Succession A.ct, 1956-Whether remarriage would bar a mother fr•m
succeeding as son's heir.
•
On the demise of Karuna, ther were two rival claims for inheritance to
his property.
One by the appellant who claimed it as bis widowed mother,
and the other by his father's brother who contended that the appellant
had
remarried and was thereby barred from succeeding as Karna's heir. After the
consolidation officer had decided against her, and the settlement officer, Etah
Camp, Aligarh, in her favour, the Deputy Director of Consolidation decided a
revision petition against the appellant holding that her remarriage excluded her
from the inheritance.
Thereafter, the appellant unsuccessfully fikd a writ
petiion before the High Court.
Allowing the appeal, the Court
HELD : Kasturi claimed inheritance not as a widow of her husband Madhua
but as the mother of Karna. We are entirely in agreement with the view that
"unchastity of a mother is no bar to her succeeding as heir to her son, nor
does her remarriage constitute any such bar". Under the Hindu Jaw, the bar
of inheritance would not apply to a mother, as it would to a widow. [27B-D]
'Hindu Law' 14th Edn. clause iii) p. 116 followed.
CivrL APPELLATE JURISDICTION: Civil Appeal No. 789 of 1975.
(Appeal by Special Leave from the Judgment and Order dated
25.2.1975 of the Allahabad High Court in Civil Misc. Writ No. 3756
of 1971).
E. C. Agarwala, for the Appellant.
B. Datta, for Respondent No. 2.
The Judgment of the Court was delivered by
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FAzAL Au, J.-This appeal by special leave involves a
pure
question of law regarding inheritance to the property of one Karua.
Briefly put, the case of the appellant was that the disputed Khata was
recorded in the name of Karua the son of Madhua who died leaving
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behind his widow Kasturi and his son Karua.
He had two brothers
Khushi Ram and Lekhraj who clai.med to be the next reversioners.
It is obvious that on the death of Madhua, Kasturi as the widow got
half share in the property and the other half went to Karua.
The
dispute seems to have arisen on the death of Karua when two rival
claims were put forward, one by Kasturi who contended
that she
was entitled to inherit as mother of Karua,
whereas
Khushi Ram
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averred that as Kasturi had married Lekhraj she should be divested
of her interest and excluded from inheritance as a result of which the
property would pass on to Khushi Ram and Lekhraj in equal shares
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SUPREME COURT REPORTS
[1977] 2 s.c.R.
as next rcvcrsioners.
The appellant also denied the fact that Kasturi
had
remarried
Lekhraj.
The first Court
of the Consolidation
Officer negatived the claim of Kasturi and directed mutation to
be
made in the name -0f Khushi Ram under the provisions of the U.P.
Consolidation of Holdings Act
The present appellant filed
an
appeal before the Settlement Officer, Etah Camp, at Aligrah, against
the decision of the <i::onsolidation Officer who reversed tlie finding of
the Consolidation Officer and held that as the re-marriage of Kasturi
with Lekhraj had not been proved, the appellant Kasturi was entitled
to be recorded in the revenue papers.
Against this decisi.on there
was a revision by Khushi Ram before the Deputy Director of Consolidation who set aside the order of the Settlement Officer and restored
that of the Consolidation Officer.
The Deputy. Director of Consolidation held that there was abundant evidence to prove that Kasturi
had re-married Lekhraj and, therefore, in law she would be excluded
from inheriting the property and was not entitled to be mutated
in
respect of the Khata in question.
The appellant thereupon
unsuccessfully filed a writ petition before the High Court and
hence
this appeal before this Court
Learned counsel for the appellant has argued this appeal on the
basis of the facts proved in this case.
He has not, and could not,
assail the finding of fact arrived at by the Deputy Director of Consolidation which was the last revisional court in this case.
Before pro·
ceeding to determine the point in controversy,· it may be necessary to
state the admitted facts.
In the first place it is not disputed that
the claim of Kasturi was made after the death of Kama.
By
that
time Kasturi as the widow of Madhua had already inherited haH the
share.
So the dispute centered round the share of Karna alone.
The finding of fact arrived at by the Deputy Director of Consolidation
that Kasturi had remarried Lekhraj cannot be disturbed.
In fact
there was some controversy regarding the dates of the death
of
Madhua or the re-marriage of Kasturi with Lekhraj.
The position,
however, seems to have been set at rest by the evidence of the responJent himself whc deposed that Madhua died about 10 year~ from
the date of deposition which would take us to the year
1960. The.
witness further admits that Kasturi remarried Lekhraj 2 or 3 )'ears
after Madhua's death which would take us fo ·1963.
The r~pon
dent further deposes that Kama died 1 t years from the date
of
deposition which fixes the death of Kama in the year 1970.
These
dates· arc important to show that inheritance of both Kama
and
Kasturi would be governed by the provisions of the Hindu Succe~ion
Act which had come into force even during the lifetime of Madhua.
We may now examine the contentions raised by counsel for the
appellant.
Counsel submitted that
assuming
that
Kasturi
had
remarried Lekhraj she had acquired an absolute interest in
the
pwperty and no question of divestment of the property could arise
in view of the provisions of the Hindu Succession Act.
Secondly,
it was argued that Kasturi in the instant case put forward her claim
for inheritance not as widow of Madhua but as mother of Kama,
because it was the property of Karua which was in dispute.
In the
view that we take in the present appeal, it is not necessary at all to
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KASTURI DEVI v. DY. DIRECTOR (Fazal Ali, J.)
27
decide as to whether or not Kasturi would be disinherited or divested
of the property even after having acquired an absolute interest under
the Hindu Law.
This is a moot question and not free from difficulty.
We:, will, however, assume for the sake of argument
that
as wife of Madhua Kasturi might be divested of her interest on her
remarriage with Lekhraj.
It is plain, however, in this case that the
dispute arises over the property of Karna and qua Karna's property,
Kasturi claimed inheritance not as a widow of her husband Madhua
but as the mother of Karua.
The Deputy Director of Cbnsolidation
seemed to think that the bar of inheritance would apply to a mother
as such as to a widow and on this ground he refused to accept the
claim of the appellant.
Learned counsel for the respondents
supported the stand taken by the Deputy Director of Consolidation. We
arc, however, unable to agree with the view taken by the
Deputy
Director of Consolidation which appears to be
contrary to
the
written text of the Hindu Law.
Mulla in his 'Hindu Law',
14th
Edn, while describing the incidents of a mother regarding inheritance
under clause (iii) observed at p. 116 as follows :
"(iii) Unchastity and
remarriage-Unchastity of a
mother is no bar to her succeeding as heir to her son, nor
does remarriage constitute any such bar."
A large number of authorities have been cited in support of this
view.
We find ourselves entirely in agreement With this view. Our
attention has not been invited to any text of the Hindu Law
under
which a mother could be divested of her interest in the property either
on the ground of unchastity or re-marriage.
We feel that
the
application of bar of inheritance to the Hindu widow is based
on
the special and peculiar, sacred and spritual relationship of the wife and
the husband.
After the marriage, the wife becomes an absolute
partner and an integral part of her husband and the principle
on
which she is excluded from inheritance on re-marriage is that when
she relinquishes her link with her husband even though he is dead
and enters a new family, she is not entitled to retain the property
inherited by her.
The same, however, cannot be. said of a mother.
The mother is in an absolutely different position and that is why the
Hindu Law did not provide that even the mother would be disinherited
if the remarried.
In these circumstances we are satisfied that the view of the Deputy
Director of Consolidation is legally erroneous.
The High
Court
erred in not interfering with it even though a pure question of law
'IVa~ involved and has failed to exercise jurisdiction vested in it by
law.
As the case is a very old one and does not require any further
inve~ti~tion, we do not propose to remand the case to the
High
Court.
For these reasons, therefore, the appeal is allowed, the orders of
the High Court and the Deputy Director of Consolidation are
set
a~ide, and the order of the Settlement Officer directing the mutation of
the name of Kasturi is restored.
In the circumstances of this case,
there will be no order as to costs.
M.R.
Appeal allowed.
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