GA No. 1425 of 2006
GA No. 3701 of 2006
GA No. 396 of 2008
CS No. 104 of 2006
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
SMT. JAYASRI GUHA NEE GHOSH
SMT. SHUKLA GHOSH & ANOTHER
For the Plaintiff: Mr. Hirak Kumar Mitra, Sr. Adv., Mr. S. Mukherjee, Adv.,
Mr. Soumen Sen, Adv.,
Mr. M.K. Sil, Adv.
For the Defendant No. 1: Mr. Ranjan Deb, Sr. Adv., Mr. Ashish Kumar Chakroborty, Adv.,
Mr. S. Pranoy Shubhra, Adv.
Hearing concluded on: April 25, 2008.
The Hon'ble Justice
Date: April 30, 2008.
SANJIB BANERJEE, J. : -
Into the sixth decade of the statute and deep into the constitutional era, the plaintiff seeks to ascribe a meaning to Section 15(2) of the Hindu Succession Act, 1956 - one that the plaintiff says has not been considered in any reported judgment - that it carves out an exception to the Hindu woman's absolute right to property recognised by Section 14 of the Act.
Three applications are being disposed of by this judgment. GA No. 1425 of 2006 is the plaintiff's principal interlocutory application in the suit. GA No. 3701 of 2006 is the plaintiff's subsequent application of similar import. GA No. 396 of 2008 is the first defendant's application for vacating an order of May 17, 2006 passed in GA No. 1425 of 2006 insofar as it relates to one of the three immovable properties which are the subject matter of the suit.
The plaintiff is the daughter of the brother of the first defendant's father-in- law and claims to be the only relevant heir of the first defendant's father-in-law. The plaintiff traces the family tree from her paternal grandfather Ishan Chandra Ghosh. Ishan had two sons Anukul and Pratul. Anukul had two sons Hem Chandra and Narayan. Hem Chandra's son Asoke predeceased him in 1960 and first defendant Shukla is the childless widow of Asoke. Hem Chandra's wife also predeceased him. Plaintiff Jayasri claims to be the only heir of Hem Chandra's brother Narayan. Ishan's younger son Pratul had only one son, Jagadish, and second defendant Indrajit is his only son. According to the plaintiff all the relevant male members of the Ghosh family have died intestate except Indrajit who is alive.
It is averred in the amended plaint that Ishan owned an immovable property now numbered as 32/1, 32A, 32B and 32C, Lenin Sarani, Calcutta (the Dharamtala property). The plaintiff says that the parties are jointly interested in the Dharamtala property and in two other immovable properties at 161/2/1, Rashbehari Avenue, Calcutta (the Rashbehari property) and Ishan Kutir at Purandaha, Baidyanath, Deogarh in the State of Jharkhand (the Deogarh property).
The plaintiff claims that the first defendant has inherited her share in the properties from her father-in-law, Hem Chandra, and as such has limited interest in them which in law can only devolve upon the plaintiff as the plaintiff claims to be the only heir of the first defendant's deceased husband or the first defendant's father-in-law. The plaintiff suggests that the first defendant has no legal necessity to sell any of the properties that she has inherited from her father-in- law as even on a conservative estimate, the first defendant's monthly income is not less than Rs.30,000/- which she realises by way of rent and income from a dance school that she runs at the Rashbehari property. The plaintiff insists that the first defendant did not and does not have any power to alienate or transfer or encumber any of the properties and seeks the following reliefs after having obtained leave under clause 12 of the Letters Patent:
"(a) A decree for permanent injunction restraining the defendant no. 1, her servants, agents and assigns, from selling or alienating or encumbering any of the properties mentioned in the Schedule below or any portion thereof in any manner whatsoever.
(b) A declaration that the defendant no. 1 never had any right to enter into any of the purported agreements mentioned in paragraph 7 hereof;
(c) A declaration that the purported agreements mentioned in paragraph 7 hereof are void, invalid, inoperative and are liable to be set aside;
(d) A decree for delivery up and cancellation of the purported agreements mentioned in paragraph 7 hereof.
(e) A decree for permanent injunction restraining the defendant no. 1, her servants, agents and assigns, from giving effect or further effect to the purported agreements mentioned in paragraph 7 hereof.
(f) An enquiry into and a decree for damages against the defendant no. 1 as stated in paragraph 14 above.
(ff) A decree for partition of the properties mentioned in paragraph 16A above and allotment and possession to the plaintiff of her share therein;
(j) Further or other reliefs."
On the plaintiff's interlocutory application immediately upon the institution of the suit an ad-interim order was made on May 12, 1996 in terms of prayer (a) of the notice of motion relating to GA No. 1425 of 2006. At that stage of the proceedings the second defendant had not been impleaded and there was the only defendant in the suit. Prayer (a) reads as follows:
"a. An order of injunction be made forthwith restraining the respondent, her servants, agents and assigns from selling of or alienating or otherwise encumbering the properties mentioned in Annexure "A" or disposing of any portion thereof in any manner whatsoever."
On the returnable date, May 17, 2006, the first defendant was represented. The court gave directions for filing affidavits in GA 1425 of 2006 and the order of injunction passed on May 12, 2006 was modified on the following lines:
"Order of injunction passed by me on May 12, 2006 is modified to the extent that such order of injunction would be restricted to Dharamtala property and Deogarh property.
It is made clear that in case the defendant wants to encumber the Rashbehari property she should obtain prior leave from the Court upon notice to the plaintiff.
This order is passed without prejudice to the rights and contentions of the defendant that this Court has no jurisdiction to entertain the suit in respect of Rashbehari property."
The first defendant preferred an appeal from the order dated May 17, 2006 and apparently mentioned the matter on grounds of urgency on June 15, 2006 after obtaining a pass-over of GA No. 1425 of 2006 before the Single Judge earlier on the same day. It is also not in dispute that till such date no affidavit had been filed on behalf of the first defendant to the plaintiff's principal interlocutory application. The appellate court took up the matter on July 16, 2006; recognised that the appellant could succeed in an appeal from an ad-interim order only if it demonstrated that even if all the averments in the petition before the trial court were taken to be correct no order could have been made; and, held in favour of the first defendant on a legal issue.
The plaintiff filed an application for special leave to appeal. The Supreme Court received the appeal and set aside the Division Bench order of June 16, 2006 on the ground that since the matter had ripened for hearing before the Single Judge, there was no urgency for which the appeal from the ad interim order should have been entertained. Without going into the merits of the decision of the appellate court, the order was set aside and the matter was remitted to be decided by the trial court. In view of the appellate court order being set aside, the injunction of May 17, 2006 revived. The plaintiff has sought to introduce better grounds to sustain the order by making the further application. The first defendant has applied for the order of May 17, 2006 to be vacated in respect of the Rashbehari property and an amendment application taken out by the plaintiff in the interregnum has been allowed but that is irrelevant in the context of the legal issue that falls for consideration in the present proceedings.
The first defendant says that a share in the Dharamtala and Deogarh properties devolved on her father-in-law from his father and after the death of her father-in-law she is exclusively entitled to his share as his only heir. She says that she should be left free to deal with the Rashbehari property as there is no dispute that such property was acquired by her father-in-law Hem Chandra. The first defendant says that it would make a mockery of Section 14 of the said Act of 1956 if the plaintiff's contention were to be accepted.
The plaintiff refers to the Hindu Succession Bill of 1954 and asserts that the Act of 1956 preserves the Hindu Shastric law as the Act amended and codified the law relating to intestate succession among Hindus. The plaintiff refers extensively to The Hindu Succession Act, 1956 by S.A. Kader (2004 Ed.). The plaintiff says that clause 17 of the Bill later became Section 15(1) of the Act and clause 16 of the Bill is reflected in Section 14 of the Act, but there was nothing in the Bill in its original form that can be traced as the forerunner to sub-section (2) of Section 15 of the Act. The plaintiff shows that clause 16(1) of the Bill was substantially changed before it translated to Section 14(1) of the Act but it retained the essential phrase "full owner thereof and not as a limited owner." The plaintiff says that the opening words of Section 15(1) are materially different from clause 17 of the Bill and the expression "full owner" in the Bill was dropped in the process of the enactment. Clause 16(1) of the Bill and how such provision was subsequently reflected in the statute and a comparison of the opening words of clause 17 of the Bill and the opening words of Section 15(1) of the Act will appear from the following:
"16. Property of a female Hindu to be her absolute property. (1) Save as otherwise provided in sub-section (2), where a female Hindu acquires any property, movable or immovable, after the commencement of this Act, whether such property is acquired by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase, or by prescription, or in any other manner whatsoever, such property shall be held by her as full owner thereof and not as a limited owner.
Explanation. Any such property as it referred to in this sub-section shall also include property held by a female Hindu as her stridhana immediately before the commencement of this Act."
"14. Property of a female Hindu to be her absolute property. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation. In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in nay other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act."
"17. General rules of succession in the case of female Hindus. The property of a female Hindu held by her as full owner, if she dies intestate in respect thereof, shall devolve according to the rules set out in section 18 -- "
"15. General rules of succession in the case of female Hindus. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16, --"
The plaintiff relies on a passage at pages 349-350 of Kader's commentary and the quotation from Mulla on Hindu Law appearing thereat:
Under this clause, the property inherited by a female Hindu from her husband or father-in-law, 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 sub-sec. (1) in the order specified therein but upon the heirs of the husband.
The question arises whether the heirs of the husband mentioned in this clause are heirs of the predeceased husband or the heirs of the husband whom she might have remarried after the death of the first husband. As pointed out by Mulla [18th Ed. vol. 2, p. 422], the heirs of the husband must mean the husband whose property she had inherited as his widow and in the case of property inherited from her father-in-law, the heirs contemplated are the heirs of the husband from whose father she had inherited the property. The following observations in Mulla's Hindu Law, 18th Ed., vol. 2, p. 423 may be relevant
"It would perhaps seem that cl. (b) is redundant in this Section because the order of priority in Entries (a) and (b) of sub-sec. (1) would bring about the same result even in the absence of the clause. Entry (b) read with Entry (a) in effect declares that in case the intestate dies without leaving the husband and any issue the property will devolve upon the heirs of the husband. Nonetheless the clause has a place in this section because it is conceivable that the interest may have remarried after the death of her husband from whom she may have inherited property or after the death of the father-in-law from whom she may have inherited property and may die without issue but leaving her second husband. In such a case, in the absence of the present clause the property so inherited would pass to the second husband. Such a case would not be governed by entries (a) and (b), but would be governed by the present clause which enacts that such property will not devolve upon the other heirs referred to in sub-sec. (1), which would include the second husband who survives her, but will devolve upon the heirs of the first husband. The clause is not elegantly drafted but it must follow from the language used that the expression heirs of "the husband" in the clause refers to the husband whose property had been inherited by the intestate and the reference to the property inherited from the father-in-law as the widow of a predeceased son also indicates that the heirs must be of "the husband" from whose father she inherited the property. This seems to be the speciality of the situation and it is submitted that the heirs of the husband contemplated by the clause are heirs of the husband who was the source of the inheritance or whose father was the source of the inheritance."
The plaintiff refers to a judgment reported at AIR 1966 Mad 369 (Ayi Ammal v. Subramania Asari & anr.) for the light that it throws on the expression "inherited" appearing in Section 15(2) of the Act. In such case K, a childless widow, died intestate and her sister applied for a succession certificate in respect of the gifts made to K by K's father. The Madras High Court said that gifts were not inherited by K from her father and the special direction of the estate as laid down in Section 15(2) of the Act would not apply. The plaintiff places the following passage which does not further her case:
"Prima facie, it looks that the exception engrafted seeks to retain in the father's family property inherited by the deceased lady from her parents and similarly seeks to retain in the husband's family property inherited from her husband or father-in-law. The word "inherit" is a word of known import and ordinarily cannot give any difficulty in understanding its content. To inherit is to receive property as heir, that is succession by descent. In Aiyar's Law Lexicon the word "inherit" is thus defined:
"To receive property as heir. 'Inherit' means succession by descent. To take by inheritance (48 Mad 1 - AIR 1925 Mad 497). To take, or to have; to become possessed of; to take as heir at law by descent or distribution; to descend. The words 'inherit' and 'heir' in a technical sense, relate to right of succession to the real estate of a person dying intestate".
In the Shorter Oxford English Dictionary, of the several meanings to the word "inherit", one finds the following:
"To take or receive as heir of the former possessor at his decease; to get by legal descent or succession".
There is nothing in the Act to suggest, as contended for the petitioner, that the word "inherited" has in S. 15(2) been used in a loose way and would include also receipt of property from the father or mother during their lifetime. Far from it, a reference to S. 14 clearly shows that the draftsman has used the word "inherit" with precision having in view the legal significance of the word. In the explanation to S. 14, which gives absolute right to a Hindu female in property possessed by her, one finds "property" thus defined:
(The definition of 'property' is set out from the Act)
Thus, under S. 14 absolute title is given to the female Hindu in property possessed by her subject to the provisions in sub-section (2) of Section 14, in whatever manner the property had been acquired by the female. It is devolution of the property thus acquired that is provided for under S. 15 in a case where a female Hindu dies intestate. The explanation to S. 14 sets out the various modes in which property may be acquired by the Hindu female and S. 15(2) picks out therefrom property acquired by inheritance from certain specified persons for special provision in the matter of devolution on intestacy, when the female died childless. While S. 15(1) as already stated, provides for devolution generally, sub-section (2) makes an exception in regard to the devolution of property acquired by the female Hindu in particular circumstances. I see no reason whatsoever for departing from the common and ordinarily understood meaning of the word "inherited" set out above already."
The judgment reported at AIR 1983 Bom 156 (Sonubai Yeshwant Jadhav v. Bala Govinda Yadav & ors.) is next placed by the plaintiff where Section 15(2) of the said Act was questioned as being violative of Articles 14 and 15 of the Constitution. The challenge to the sub-section was not on the ground that the Hindu woman had no right of disposition of the property that she inherited from her father or mother or from her husband or father-in-law, but on the ground that there was no similar rule limiting the right of disposition of property by the Hindu man. The matter directly in issue in the present case was not considered in the judgment, though the discussion relied upon by the plaintiff may be seen:
"19. It is this state of law which had the basic socio-legal recognition in the unity of the family, in the institution of marriage and out of which sprung the necessity of laying down the rules of inheritance and succession that provide the feedback to the present codifying legislation. It has recognised the same basic necessity to maintain the succession with the family, the unit which thrives and is furthered by marriage. It is significant that the Hindu Succession Act makes meaningful references to several relations that arise because of valid marriage within the social unit of the family. Otherwise uncodified dictionary of several terms that describe the relations in a kin group as contemplated by this law is a sure indication of the intention of the Legislature to fortify the institution of family by recognising marriage as basic and to continue the property entitlements on that basis. In this scheme 'wife' as a relative is a specified heir. No doubt, the present codification is not mere collection or arrangement of past parcels of precepts. There are clear departures from the history, one such being the conferring of full ownership upon a Hindu female with regard to the property acquired by her and thus putting her on par with other owners of the property in Hindu family. (Section 14 of the Act). That, however, is not intended either to affect her position as the 'wife' in the family or to affect the character of the family or property in her hand. On the other hand, the provisions like section 15(1) or 15(2) clearly show that when succession opens to her, rules are enacted with clear intent to keep up the continuity so that the property of the husband remains in his line, while that of parents follows their line. Both on the socio-juristic grounds, classification reasonably exists and is continued.
"20. Principally, law of succession is a law of entitlement. And also of status. These twin objects are achieved by laying down compact supportive schemes. It is self-evident that for achieving these objectives, the integral unity of the family is the point of legislative reference. That may be because of the socio-legal group governed by the tenets of personal law of Hindus wherein institution like marriage results in union and gives rise to different relations in turn strengthening structure of the family, a vital organism, in social web of associative existence. Property or acquisition offers and supports its continuity and unity. Family by that retains its economic as well juridical identity. Of course, marriage, by no means, is private property in wife nor an economic arrangement. It ever represents essential partnership of two human beings united as husband and wife, each of whom being and providing heirs to each other. All this matrix of relations is clear and reference to the definitions available in Section 3 of the Hindu Succession Act of the term like "heir" goes to highlight the same.
"21. "Heir" means a person, male or female, who is entitled to succession to the property of an intestate. The term 'intestate' indicates a person who is deemed to die intestate in respect of the property of which he or she had not made testamentary disposition. (Sections 3(f) and 3(g)). Leaving aside other terms, the definition of the word "relative" available in Section 3(j) also takes in the basis of legitimate kinship. Therefore, if the kinship is recognised by law and its terms entitle such a person, male or female by the rules of devolution to succeed to the property, then such a legal classification can hardly be said to militate against the interest of other heirs only because such heirs appear to be of other sex. It is interesting to observe in this context that several classes of heirs have been classified in the Schedule to the Act and the terms thereof are couched in descriptive manner indicating the natural and legal relations between the parties and particularly to the person whose succession is in issue. In the very nature of things, if the object is to further the institutional identity of the family along with its property, the same can well be conferred in favour of the class that comes closer to the family, such as those like husband and wife and their off-springs, than the other related but distant persons to that ground of which the husband and wife are the united members. By describing the heirs of husband, the heirs of wife are not excluded, for being a wife she is the member of her family. That is clear if a look is taken at the arrangement of different types of heirs and the classes thereof. If the property has come from the father or mother of a Hindu woman dying intestate, the law in furtherance of the clear objective to continue the family unity directs that such property should go to the heirs of father and mother and not to the heirs of the husband. It is only when the property is inherited from the husband that the provisions require that it should devolve on the heirs of the husband. The supportive principle of both these provisions is the same. Sustaining the unity of the family and for that the entitlement to the property carved out in favour of closer relations than remote. Choose the core group and permit remote ones to come in only in case of its want, is the principle."
The plaintiff has relied on the judgment reported at AIR 1974 AP 266 (Bhimadas & ors. v. P. Kanthamma (died) & ors.) for the quotation with approval therein of a passage from the work of a renowned scholar of Hindu law at the following part of paragraph 2 of the report:
"2. ... Therefore a reasonable way of interpreting Section 15(2)(a) would be to supply what was not intended to be omitted. Prof. J. Duncan M. Derrett in his 'Introduction to Modern Hindu Law' in paragraph 622 says: "The exceptions to the general rule are motivated by a clear (and traditional) desire that the property shall not pass from family to family merely by a female's death intestate. Where property was inherited by her from her parent or parents, it shall not pass to her husband or to her husband's heirs where she dies without children or children of predeceased children. If such children or grand-children survive her there is no objection to the husband taking a share even in such property, otherwise he is excluded, and so are his heirs, and the property goes to the 'heirs of the father'.
The intelligent reader will at once exclaim, what will happen if the property was inherited by her from her mother, and her father survives her? Since the section provides that it shall pass to the heirs of a person who turns out to be alive (and so has no heirs), should it go to the Government under HSA. S. 29? The answer must be that here we have an example of the very rare phenomenon, the legislative provision which is absurd unless words are added. We are justified in reading 'upon the heirs of the father' as 'upon the father and in default of the father upon the heirs of the father', under the maxim of construing ut res magis valeat quam pereat."
The first defendant says that it is only upon death intestate of the Hindu woman that the property that she had inherited from her father or mother or from her husband or father-in-law that returns to the source or traces a new direction from the source, but Section 15(2) of the Act does not impinge on her right to deal with the properties that she comes to absolutely own. The first defendant relies on the judgment reported at (2006) 8 SCC 75 (Sadhu Singh v. Gurdwara Sahib Narike & ors.) and places paragraph 12 of the report:
"12. When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the Schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17-6-1956 leaving his widow as his sole heir, she gets the property as Class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate."
The first defendant relies on the opening sentences of paragraph 12 of the judgment reported at (2008) 1 SCC 267 (Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal) to assert that the entirety of Section 15(2) applies in case of intestacy and cannot denude the Hindu woman of her right to deal with the property during her lifetime, including the right to bequeath it by a testamentary document:
"12. Parliament enacted the Hindu Succession Act, 1956 to amend and codify the law relating to intestate succession among Hindus. Section 3(f) of the Hindu Succession Act defines "heir" to mean any person, male or female, who is entitled to succeed to the property of an intestate under the Act. ..."
The first defendant cites the judgment reported at (2008) 2 SCC 610 (Cherotte Sugathan (Dead) Through LRs. & ors. v. Cherotte Bharathi & ors.) and places paragraph 17 of the report where an earlier decision of the Supreme Court has been quoted from and approved:
"17. Yet again this Court in Velamuri Venkata Sivaprasad v. Kothuri Venkateswarlu [(2000) 2 SCC 139] held: (SCC p. 165, para 52)
"52. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage; while it is true that the section speaks of a predeceased son or son of a predeceased son but this in our view is a reflection of the Shastric Law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. As a matter of fact she takes her share absolutely and not the widow's estate only in terms of Section 14. Remarriage of a widow stands legalised by reason of the incorporation of the Act of 1956 but on her remarriage she forfeits the right to obtain any benefit from out of her deceased husband's estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on to the next heir of her deceased husband as if she were dead. Incidentally, the Act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14(1) of the Hindu Succession Act was relied upon by Defendant 1."
We respectfully agree with the said view."
The first defendant has referred to a judgment reported at (1978) 2 SCC 542 (Bajaya v. Gopikabai) but the Supreme Court merely decided in such case which of the limbs of Section 15(1) of the Act would apply. Though the decision implies that Section 15(2) of the Act would be an exception to the rule of inheritance laid down in Section 15(1), it does not address the legal issue that has been raised in the present proceedings.
The plaintiff says that she does not need to conclusively demonstrate that the legal ground that she canvasses has to succeed for her to obtain an order of injunction in respect of the Rashbehari property. The plaintiff relies on a judgment reported at (1986) 3 All ER 772 (Films Rover International Ltd. and ors. v. Cannon Film Sales Ltd.) for the principle that if there is a serious question raised, an injunction should necessarily follow and the property preserved till the trial. An earlier English decision reported at 1865 (1) LR PC 50 (Walker v. Jones) is cited for the same purpose.
The plaintiff urges that what has been preserved by Section 15(2) of the said Act is the life estate of a female Hindu with her right to sell the property that is covered by either clause therein only in case of legal necessity. The plaintiff traces the rights of a female Hindu under the Shastric law and says that prior to the Hindu Women's Right to Property Act, 1937, Hindu women has no right to property except her stridhana. The plaintiff says that a Hindu woman's earning through her mechanical exertion was also not her absolute property in the law as laid down in the scriptures. The plaintiff argues that since such was the state of the Hindu woman's right to property, that she had been granted some rights under the 1937 Act and more rights under the said Act of 1956, should not prompt the Court to conclude that the Hindu woman's right to disposition of property that she inherits is absolute or without any fetter.
What the plaintiff says is that after the 1956 Act the Hindu woman became absolute owner of the property that she inherited as the property could not remain in limbo, so to say. In law the Hindu woman remains the owner of the property that she inherits, according to the plaintiff, but she has no right to dispose of such property in view of Section 15(2) of the said Act. The plaintiff insists that there is reason for Section 15(2) not including the expression "dying intestate" and Section 15(2) ought really to be read as an independent section. In effect, the plaintiff argues that despite neither Section 14 carving out any exception to the absolute right to property of a female Hindu nor the non- obstante clause in the opening words of Section 15(2) covering no more than sub- section (1), Section 15(2) of the Act should be read as an independent provision preserving of the Shastric law just as some other sections of the Act did till the amendment of 2005 which showed that the Hindu female had lesser rights than the male. In support of the contention, the plaintiff refers to Section 4 of the Act and says that the removal of sub-section (2) thereof by the amending Act of 2005 is irrelevant. According to the plaintiff, Section 4(a) of the Act negates the effect of any text, rule or interpretation of Hindu Law or any custom or usage as part of that law only if there is specific provision made in that regard by the said Act. The plaintiff asserts that Section 15(2) has expressly preserved the law of the scriptures as to the lesser rights of a female Hindu and Section 4 of the Act does not curtail its impact:
4. Overriding effect of Act.-- Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
On interpretation of statutes, the plaintiff refers to the judgments reported at (2003) 2 SCC 455 (Unique Butyle Tube Industries (P) Limited v. U.P. Financial Corpn.); (2005) 10 SCC 437 (State of Jharkhand v. Govind Singh) and (2004) 5 SCC 518 (Sakshi v. Union of India). In the Unique Butyle case the Supreme Court held that the Court cannot read anything into a statutory provision which is plain and unambiguous as a statute is an edict of the legislature. It said that a casus omissus should not be readily inferred or supplied by the Court except in the case of clear necessity and when the reason is found elsewhere in the Act. In the Govind Singh case the Supreme Court reiterated that attention should not only be paid to what has been said but also to what has not been said, for a Court can interpret the law but not legislate. In the Sakshi case the Supreme Court harped on the basic rule of interpretation, that of literal or strict construction, and warned against addition or rejection or substitution of words in a statute.
The plaintiff refers to Craies on Statute Law (7th Ed.) to suggest that only if the meaning of an enactment is not plain, light may be thrown upon it by assuming that certain words "have been designedly omitted" (page 107). The plaintiff cautions that it is not the court's exercise to ascertain the policy of the law and such a task is undertaken only when the statute under consideration is not explicit. The plaintiff submits that to adopt any other method of construction would be to impose upon the subject the views of the Judge, instead of construing the definite intention of the legislature (Craies, page 175).
The plaintiff says that the limited right granted under the Hindu Women's Rights to Property Act, 1937 has been considerably enlarged by the said Act of 1956. The Act of 1937, short as it is, is placed in its entirety:
"Whereas it is expedient to amend the Hindu law to give better rights to women in respect of property:
It is hereby enacted as follows:-
Section 1. - (1) This Act may be called the Hindu Women's Rights to Property Act, 1937.
(2) It extends to the whole of India, except Part B States.
Section 2. - Notwithstanding any rule of Hindu law or custom to the contrary the provisions of section 3 shall apply where a Hindu dies intestate.
Section 3. -(1) When a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son;
Provided further that the same provisions shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.
Section 4. - Nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act.
Section 5. - For the purposes of this Act, a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect."
The plaintiff suggests that the Hindu women's estate after the 1956 Act is not of life interest but is considerably more: she can alienate the property inherited on grounds of legal necessity if she is in distress or in discharge of her pious obligation for the spiritual betterment of the soul of the person from whom she inherits. The effect of Section 14 of the 1956 Act, according to the plaintiff, is to allow the female Hindu to pass on the property in case of legal necessity or in discharge of her pious obligation for unless she is absolutely seized of the entire interest in the property she cannot confer any to another.
The plaintiff refers to Section 6 of the Act as it stood prior to the 2005 amendment and Sections 23 and 24 of the Act that now stand omitted to suggest that the 1956 Act did not altogether obliterate the discrimination as to inheritance that the scriptures ordained. The plaintiff says that Section 15(2) may be a relic that has not been removed, but till such time it remains it cannot be wished away. The plaintiff submits that courts have inexplicably but consistently presumed that the expression "dying intestate" appears in Section 15(2) of the Act, though the argument made on her behalf here has not been recognised or considered in any judgment that is available.
The plaintiff relies on Mayne's Hindu Law and Usage (15th Ed.) and cites paragraphs 640 and 641 to demonstrate that the only real absolute right that the female exercises over any property is her stridhana:
"640. Women's peculium. - The subject of stridhana or woman's peculium occupies a large place in the Sanskrit lawbooks. It will be discussed in this chapter under four heads: (1) the meaning and scope of stridhana; (2) its divisions; (3) the power of disposition over it; and (4) its devolution.
It would appear that woman's separate property was, from the most ancient times, known as stridhana and Mr. Kane says that passages in the Vedas refer to it. The term 'stridhana' first occurs amongst the Smritis in the Dharmasutra of Gautama and literally means woman's property. The Mitakshara and the authorities that follow it take the term 'stridhana' in its etymological sense as including all kinds of property of which a woman has become the owner, whatever the extent of her rights over it. Jimutavahana restricts the term to that property of the woman over which she has absolute control even during the life of her husband. The Vyavahar Mayukha, while following the Mitakshara's comprehensive signification, makes a distinction between technical and non-technical stridhana for purposes of inheritance, designating all those kinds of stridhana that are enumerated in the Smritis as technical stridhana (paribhashika). Meaning of stridhana. - In modern Hindu law, the term 'stridhana' denotes not only the specific kinds of property enumerated in the Smritis, but also other species of property acquired or owned by a woman over which she had absolute control; and she forms the stock of descent in respect of such property, which accordingly devolves on her own heirs. Properties gifted to a girl before the marriage, at the time of marriage or at the time of giving fare-well or thereafter are her stridhan properties. It is her absolute property with all rights to dispose at her own pleasure. Husband or other members of his family have no control over the stridhan property. Husband may use it during the time of his distress but nevertheless he has a moral obligation to restore the same or its value to his wife.
"641. Recognised in early Hindu law. - A text of Manu states that a wife, a son and a slave can have no property and that the wealth which they earn is acquired for him to whom they belong. This did not mean that they could not own property, but as explained by Manu's commentators, they could not dispose of their property independently. This view receives support from Gautama who distinctly admits the right of a woman to hold separate property and provides for its succession. Apastamba says that the share of the wife consists of her ornaments and the wealth which she may have received from her relations. Naturally, a woman's property would commence at her bridal, and would consist of gifts from the bridegroom and his family and from her own family. The original bride-price payable to the parents appears to have become transformed into the dowry for the wife. There was evidently a usage that property upto the limit of two thousand panas should be given annually to the wife by the father, mother, husband, brother or kindred. This was exclusive of any immovable property, the gift of which was entirely optional. Besides gifts of affection from her parent's or from her husband's family, a married woman was at liberty to receive presents from strangers or make earnings by mechanical arts during coverture, but a restriction on her power of disposal was imposed upon her, lest she became too independent and neglected her marital duties and the management of household affairs. A test of Manu, which requires a righteous king to punish as thieves such relatives as appropriate the property of woman during their lifetime, is quoted in all the books. It is therefore quite clear that from early times, Hindu law recognised to the full the rights of women to hold separate property. Their rights of disposition over many and minor species of property too were admitted, though over others, restrictions were imposed on fairly rational grounds. This is not surprising when it is remembered that restrictions were imposed over males also in respect of dispositions of property and especially of immovable property. From the time of Gautama, the characteristic feature of woman's property was in the matter of succession, the preference given to the female over the male children - an obvious equitable rule. In the quaint phrasing of the Mitakshara, "Woman's property goes to her daughter because portions of her abound in her female children and the father's estate goes to his sons because portions of him abound in his male children"."
The plaintiff has also quoted copiously from Mulla's Principles of Hindu Law (19th Ed.). The plaintiff says that Section 14 of the Act is subject to certain qualifications and it is not impossible to conceive that it would be subject to the Shastric law as preserved under Section 15(2). The plaintiff relies on Articles 168 to 170, 172, 174 to 176, 178 and 180 from Mulla. The plaintiff particularly relies on the following sentences appearing at the head of Article 176:
"A widow or other limited heirs are not a tenant-for-life, but is owner of the property inherited by her, subject to certain restriction or alienation and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely."
What the plaintiff fails to notice is that the entirety of Chapter XI and Articles 166 to 209 under that Chapter is the commentary on the law relating to property acquired by Hindu women by inheritance prior to the said Act of 1956. That will appear from the top of the Chapter and the table of contents. A general reading of the various articles under Chapter XI also unmistakably conveys that the entire Chapter deals with the law prevailing prior to the 1956 Act.
The plaintiff says that it was only after the original Hindu Succession Bill was amended by the joint committee that there was the genesis of what later became Section 15(2) of the Act in sub-section (2) being added to clause 17 of the amended Bill. The plaintiff places the following extracts from the Joint Committee report on the Bill quoted by Kader at page 61:
"Clause 16. In the opinion of the Joint Committee there is no reason why the Hindu Woman's limited estate should not be abolished even with respect to existing properties. Clause 19 has therefore been omitted and this clause has been suitably modified.
"Clause 17. While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass."
Section 14 of the said Act is the heart of the statute, continuing a conscious endeavour to remove the inequalities between the sexes in the Hindu law of inheritance. The same purpose is reflected in the amending Act of 2005 by which some of the provisions that maintained the imbalance were removed. To appreciate the argument of the plaintiff, Sections 14 and 15 of the Act need to be first seen:
"14. Property of a female Hindu to be her absolute property.--(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
"15. General rules of succession in the case of female Hindus.--(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 sub-section (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 pre-deceased son or daughter), not upon the other heirs referred to in sub-section (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 father-in-law 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 sub-section (1) in the order specified therein, but upon the heirs of the husband."
The life of law has not been logic, it has been experience (Oliver Wendell Holmes, The Common Law (1881), Lecture I). However, one cannot proceed on the basis that law is illogical or it is the perception drawn from experience that has more to do than the syllogism in determining the rules. Canons of interpretation, by whatever name called, are first founded on rationality. Strained principles of interpretation, laboured in their application can lead to an absurd construction. The rules of interpretation cannot then be faulted, their application may be.
Yet even by experience, the life of this body of law cannot lead to the interpretation that the plaintiff demands. In Hindu law the right to property had always been exclusively for the benefit of the man with the woman being treated as subservient and dependent on male support. Prior to the Act of 1956 Shastric and customary law governed the laws of Hindu succession, its variations appearing over different regions and even within the same region based on caste. Different schools of law existed in matters of succession: the Dayabhaga in Bengal and the neighbouring region; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara elsewhere in divergent India.
Fundamentally, in the Hindu scriptures a Hindu woman had a right to sustenance but the control or ownership of property did not vest in her. The Mitakshara law recognised inheritance by succession but only in respect of the property separately owned by an individual, male or female. Prior to the Hindu Law of Inheritance Act of 1929, the Bengal, Benaras and Mithila sub-schools of Mitakshara recognised only five female relations as being entitled to inherit - the widow, the daughter, the mother, the paternal grandmother and the paternal great grandmother. The Madras sub-school recognised the heritable right of a larger number of female heirs. The Bombay school, which was considered to be the most liberal to women, recognised an even larger body of female heirs. The Dayabhaga School did not accord a right by birth or by survivorship though it recognised a joint family and joint property. The Dayabhaga provided a single mode of succession and the same rules of inheritance applied whether the family was divided or undivided and whether the property was ancestral or self- acquired. In the Marumakkattayam law the lineage was traced through the female line.
With increasing social integration and the reform movements, there was a call for the amelioration of the woman's position in the Hindu society. The earliest legislation was in 1929 which conferred inheritance rights on three female heirs. The 1937 Act followed which brought about revolutionary changes in the Hindu law of all schools including in matters relating to partition, alienation of property, inheritance and adoption. The 1937 Act enabled the Hindu widow to succeed along with the son and take a share equal to the son's.
In the Constitutional era, Articles 14, 15(2) and 15(3) and 16 of the Constitution frown upon the discrimination and provide the State with the authority to accord protective discrimination in favour of women. The Directive Principles ordain that the state shall strive to ensure equality between man and woman.
The Act of 1956 gave substantial rights to women but did not give them as equal a right to property as it professed. The Hindu Code Bill was framed by the B.N. Rau Committee and piloted by Dr. Ambedkar but met substantial conservative opposition. Sita Ram S. Jajoo from Madhya Bharat expressed his anguish in the following words:
"Here we feel the pinch because it touches our pockets. We male members of this House are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this House." (The Constituent Assembly of India (Legislative) Debates, Vol. VI, 1949, Part II)
In the face of such history, it is not surprising that the plaintiff says that the conservative members of the Parliament succeeded in ensuring the tyranny of the majority by slipping in Section 15(2) to the final form of the 1956 Act when no trace of it is found in the original Bill. But to accept the argument would be to rely only on the experience of the Bill's passage amid resistance in Parliament and to defy logic.
There is nothing in Section 14 of the Act that would prepare one for the rude jolt that is the plaintiff's version of Section 15(2). Section 14 is unreserved in its first sub-section and the second sub-section merely clarifies that a property that is received by a Hindu woman by way of a gift or a Will or any other instrument or a decree or order or award will not be her absolute property if the devise by which she receives the property provides otherwise.
Sub-section (2) of Section 15 in its non-obstante clause limits the operation of the rule in sub-section (1) to the cases enumerated in sub-section (2). As much as the heading or the marginal note of a section cannot ordinarily be read to dilute or enlarge the plain words of the section, Section 15(2) of the Act is not a stand-alone provision. A non-obstante clause is sometimes appended to a provision in the beginning with a view to give the enacting part of the provision, in case of a conflict, an overriding effect over the provision referred to in the non- obstante clause. A non-obstante clause is also a legislative devise to curtail the ambit of the provision referred to therein. Section 15(2) has to be seen as an exception to the general rule recognised in Section 15(1) of the Act and necessarily applies to a female Hindu dying intestate. In the accurate expression of the non-obstante clause the operation of the sub-section is specified and the omission of the expression "dying intestate" is neither significant nor relevant as the parent provision that the sub-section operates on already contains the expression.
Section 15, in its entirety, sets down the rule of succession to the estate of the Hindu woman dying intestate. The plaintiff seeks to take advantage of the form of expression of the rule. Ordinarily, succession to the estate of the Hindu woman dying intestate would be as prescribed in sub-section (1). But to the extent that the source of a part of the estate (or the whole of it) can be traced to inheritance from the mother or father of the deceased, the direction of succession of such part of the estate (which may be the whole of it) is governed by clause (a) of sub-section (2); and, likewise if the source of a part of her estate (or the whole of it) can be traced to inheritance from the husband or the father-in-law of the deceased, the direction of succession of such part of the estate (which may be the whole of it) is governed by clause (b) of sub-section (2).
To move on from logic and return to experience, the amending Act of 2005 may also be of some relevance in the context. In its Statement of Objects and Reasons it expresses the intention of removing discrimination as contained in certain provisions of the parent statute. The amending Act makes no special case to justify the retention of Section 15(2) for an explanation was called for if the provision means as the plaintiff construes it. To accept the plaintiff's interpretation of Section 15(2) of the Act - which is simply an exception to the rule in Section 15(1) - would be to defy both experience and logic. There are elements of gender discrimination that remain in the Act of 1956. There is discrimination apparent in the principle recognised in Section 15(2) of the Act in it attaching significance to the source of the estate of a Hindu woman dying intestate though elsewhere in the Act there is no corresponding provision for the Hindu man. This discrimination in principle may translate to discrimination in fact in an unlikely, but not altogether inconceivable, situation. One instance that comes to mind would be if a Hindu woman dying intestate has a son (or daughter) and husband as her only heirs. In accordance with Section 15(1)(a) read with the rules of the order of succession and manner of distribution in Section 16 of the Act, her estate would devolve on her son (or daughter) and her husband who would take simultaneously. If the son (or daughter) dies without marrying and without any issue prior to the husband dying, in the event of the husband dying intestate his estate would devolve on his heirs referred to in the Schedule to the Act and would pass on to his class II heirs. If the husband's father were alive the estate would pass on to him or if he were dead at the time of the husband's death, the estate would pass on to the brother and sister of the husband as per the second entry in class II. The property would then have passed to a beneficiary or beneficiaries unconnected to, and quite far removed from, the source. But this element of discrimination is lesser in degree than what the plaintiff canvasses that Section 15(2) of the Act perpetuates.
Section 15(2) of the Act may still come to the plaintiff's aid in respect of the same properties. But she appears to have jumped the gun. The provision will operate, and in favour of the plaintiff, if the first defendant dies intestate. The plaintiff then, as the best-placed heir of the first defendant's husband, would be entitled to launch this claim. If, however, the first defendant chooses to gift or sell or bequeath or otherwise deal with the properties that she has inherited from her father-in-law, the plaintiff has only to sit by and ponder as to what could have been.
There can be no impediment to the first defendant dealing with the Rashbehari property in its entirety and in the first defendant dealing with her undivided share in the Dharamtala and Deogarh properties that devolved on her from her father-in-law. There is no serious question on such score to go to trial with the first defendant being detained during the interregnum.
GA No. 396 of 2008 succeeds. GA No. 1425 of 2006 and GA No. 3701 of 2006 are dismissed and the first defendant is left free to deal with the entirety of the estate that she inherited from her father-in-law. For the plaintiff's labour she shall pay costs assessed at 3000 GMs to the first defendant.
Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Sanjib Banerjee, J.)
The plaintiff seeks a stay of operation of the order which, in the light of the view taken above, ought to be declined. However, considering that the limited injunction has remained in force in respect of the Rashbehari property for nearly two years, this order will remain stayed for a fortnight.
(Sanjib Banerjee, J.)