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Ben Madhu and anr. Vs. Bai Mahakore and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal Nos. 121 and 215 of 1945
Judge
Reported inAIR1950Bom66
ActsHindu Law of Inheritance (Amendment) Act, 1929 - Sections 1, 1(2), 2 and 3; Mayukha Act; Mitakshara law
AppellantBen Madhu and anr.
RespondentBai Mahakore and anr.
Appellant AdvocateA.D. Desai, Adv. for ;H.M. Choksi, Adv.
Respondent AdvocateD.V. Patel, Adv.
DispositionAppeal succeeded
Excerpt:
.....persons in the order mentioned in the section by providing expressly that they would come after a father's father and before a father's brother. 272 is no longer good law. nevertheless he was not satisfied that there was any sufficient reason for referring the question to a full bench because the plaintiff's case was bound to fail in any event. 272 as to the effect of the provisions of section 2 of the act is not regarded as good law any longer, the question still remains whether the position of the sister can be said to be saved by reason of the exception provided in section 3 (1). as i have already mentioned baker j. was quite unwilling to exempt the sister on this ground because he expressly stated that notwithstanding the opinion of sir dinshah mulla to the contrary he felt it would..........son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother. section 3 provides an exception. it says that nothing in the act shall affect any special family or local custom having the force of law and that it shall not vest in the heirs mentioned in section 2 an estate larger than or different in kind from that possessed by a female in property inherited by her from a male according to the school of mitakshara law by which the male was governed.5. mr. patel for the respondents has argued that the whole of this act cannot apply to the parties in the present case because they are governed by mayukha and cannot be said to be subject to the law of mitakshara as required by section 1(2) of the act. this.....
Judgment:

Gajendragadkar J.

1. The short question which arises in these appeals is one of succession under Hindu law. The contest is between the sisters on the one hand and the daughter's daughter on the other. This point arises in this way :

2. The property in suit originally belonged to Prabhashankar on whose death it devolved upon his widow Kashi. While Kashi was in possession of this property as a limited owner she sold the same to the defendants under two sale deeds dated 23th January 1941, and 31st January 1941, for Rs. 400 and Rs. 1000 respectively. Subsequently Kashi died on 9th July 1941, leaving her surviving her daughter's daughter Madhu, and the present plaintiffs who are the sisters of her deceased husband. The present appeals arise from suits filed by the sisters claiming to recover possession of the properties left by their deceased brother on the allegation that the sales effected by Kashi in favour of the defendants were not for legal necessity and as such not binding on them. The defence was that the sales were justified by legal necessity and that in any event the title to the property vested in Madhu and not in the plaintiffs. On the question of legal necessity both the Courts have held against the defendants. It has been found that the sale deeds in question were not for legal necessity and do not bind the plaintiffs. On the question as to whether daughter's daughter was a preferential heir to the property in suit both the Courts have taken the view that she is not. The result has been that the suits by the sisters have succeeded and their claims for possession decreed. It is these decrees against which the purchasers have preferred the present appeals. On their behalf the only point which has been urged before us is that the Courts below were wrong in coming to the conclusion that the daughter's daughter was not a preferential heir to the property in suit.

3. This question really turns upon the effect of the provisions of the Hindu Law of Inheritance (Amendment) Act, II [2] of 1929. The parties in the present case are governed by the Mayukha and there is no doubt that before the said Act was passed the sister was recognised as a gotraja sapinda both in the Mitakshara and in the Mayukha. It was also recognised in Bombay that the sister comes before the widows of gotraja sapindas and that her position in the order of succession is after paternal grandmother, but before paternal grandfather. But it has been argued before us by the appellants that this position has been substantially altered by reason of the provisions of Act II [2] of 1929. It is therefore necessary to examine the scope and effect of the provisions of this Act.

4. This Act extends to the whole of British India, but applies only to persons who, but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions therein contained, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will. Section 2 of this Act provides that a son's daughter, daughter's daughter, sister, and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother. Section 3 provides an exception. It says that nothing in the Act shall affect any special family or local custom having the force of law and that it shall not vest in the heirs mentioned in Section 2 an estate larger than or different in kind from that possessed by a female in property inherited by her from a male according to the school of Mitakshara law by which the male was governed.

5. Mr. Patel for the respondents has argued that the whole of this Act cannot apply to the parties in the present case because they are governed by Mayukha and cannot be said to be subject to the law of Mitakshara as required by Section 1(2) of the Act. This argument is based upon the assumption that the Mitakshara and Mayukha are two schools of Hindu law, independent and exclusive of each other and based upon different foundations. Unfortunately for Mr. Patel, however, this contention was raised before a Division Beach of this Court and has been negatived by them in Ambabai Bhaichand v. Keshav Bandochand 43 Bom. L. R. 114 : : AIR1941Bom233 , Divatia J. in his well considered judgment examined this question in detail and came to the conclusion that there are only two fundamental schools of Hindu law, the Mitakshara and the Dayabhaga, and Mayukha in spite of its different interpretation of the ancient texts on some points, belongs to the Mitakshara school of Hindu law. He pointed out that the phrase 'the law of Mitakshara' used in Section 1 of the Act of 1929 includes all sub-divisions of the Mitakshara law and excludes the law of Dayabhaga. In support of this conclusion Divatia J. has also referred to Clause (b) of Section 3 which refers to the school of Mitakshara and has suggested that the word 'school' evidently refers to the Bombay school on the one hand and the Benares and the Madras schools on the other. With respect we agree with this conclusion. That being so, it is not open to Mr. Patel to contend that the Act of 1929 does not apply to the parties because they are governed by the Mayukha.

6. Then the next question which falls to be considered is what is the scope of the provisions of this. Act and what is their effect. The Privy Council had occasion to consider this question in Mt. Sahodra v. Ram Babu . No doubt, the actual question which arose for determination was whether the words 'sister's son' in Section 2 of the said Act include the son of a half-sister; in other words, whether the word 'sister' can be said to include a half-sister. The argument urged before the Privy Council was that the term 'sister' in Clause (2) includes a half-sister and by parity of reasoning the words 'sister's son' would include a half-sister's son. The Allahabad High Court, from whose judgment the said appeal had been preferred, had followed their own decision in Ram Adhar v. Mt. Sudesra : AIR1933All491 , and had negatived this contention. The view which prevailed with the Allahabad High Court was that the word 'sister' in the English languageordinarily means a sister of the whole blood, and that if the said term were held to include a half-sister, it would be putting a sister and a half sister in the same category which would be against the spirit of the Mitakshara law. This view did not appeal to their Lordships as reasonable. They took the view that the term 'sister' should be interpreted according to the notions of Hindu law and that as a general rule the law of Mitakshara recognises no distinction between relations of whole blood and those of half blood which would include sisters and half-sisters as well except, when there is a competition amongst them inter se. While considering this question, however, their Lordships examined the scheme of this Act and the effect of its provisions. They pointed out that the object of the Act is to alter the order of succession of certain persons mentioned therein and that it was clear that the Act would apply to the persons specified so as to constitute them heirs not only in provinces where they were already recognised as heirs but even in those provinces where they were not heirs according to the prevailing view of the law of the Mitakshara :

'It will thus be seen', observed Sir Madhavan Nair in the course of his judgment, 'that the Act has amended and altered the old order of succession in Hindu law. It affects all Hindus governed by the Mitakshara...It is obvious that the object of the Act is to give effect to the principle of propinquity by bringing into the order of succession some of these persons more nearly connected with the propositus by ties of blood than others whose connection with him though as sapindas is but remote' (p 354).

In view of this decision of the Privy Council there would be little difficulty in holding that daughter's daughter must succeed in preference to the sister in the present case. Section 2 in terms provides that the four persons mentioned in the section shall be regarded as heirs, that they shall succeed in the order specified in the section and that they shall so succeed next after a father's father and before a father's brother. A daughter's daughter clearly must come before the sister under this section. But it has been pressed before us by Mr. Patel that the position of the sister in the Bombay Presidency cannot be deemed to be affected by reason of the provisions of Section 2 of this Act, and in support of this contention he has strongly relied upon a decision of a Division Bench of this Court in Shidramappa v. Nilavabai 35 Bom. L. R. 397 : A. I. R. 1933 Bom. 272. In Shidramappa's case 35 Bom. L. R. 397 : A. I. R. 1933 Bom 272, the contest was between the widow of the brother of the propositus and his three sisters It was held by Baker and Rangnekar JJ., that the sister succeeded in preference to the widow of the brother of the propositus. Both the learned Judges apparently took the view that Section 2 of the Act was intended to apply to heirs who would come after the father's father and not before him. According to them the Act contemplated change in the order of succession only after father's father leaving the order of succession before father's father undisturbed. There is no doubt, as I have already mentioned, that before this Act was passed the sister in the Bombay Presidency came immediately after the father's mother and before the father's father. It was alternatively argued in this case that this position of the sister in the order of succession could be saved under Section 3 (a) of this Act on the ground that the said position 'was the result of a local custom having the force of law.' Baker J. was not impressed with this argument because he expressly observed that it would be unsafe to exempt the sister in Bombay from the operation of the Act on the ground of custom. But since he held that the Act was intended to apply to succession after father's father he accepted the appellant's contention that the sister should be preferred to the widow of the brother of the propositus. Rangnekar J., however, based his decision both on the construction of Section 2 and on the saving clause in Sub-section (a) of Section 3 : 'If necessary', said Rangnekar J., 'I would be prepared to hold that a sister in Bombay is assigned a fixed place on the ground of a local custom having the force of law,' (p. 402).

7. It would thus appear that the learned Judges who decided this appeal agreed on the construction of Section 2, but differed on the applicability of Sub-section (a) of Section 3. With very great respect, however, it seems to us that there is no justification for limiting the application of Section 2 only to cases of succession after father's father. It is now well settled that Section 2 of this Act applies to the four persons mentioned in the section whether they were already recognised as heirs or not, and we feel no doubt that the Act wanted to alter the line of succession under the Mitakshara law by introducing these four persons in the order mentioned in the section by providing expressly that they would come after a father's father and before a father's brother. In fact, in view of the decision of the Privy Council in Sahodra v. Ram Babu , it must now be taken to be established that the Act has amended and altered the old order of succession, and in making the said alteration Legislature has given effect to the principle of propinquity. In the case of some provinces where these persons were not recognised as heirs at all they have been included in the list of heirs and have been assigned their places. Where these persons or some of them were recognised as heirs and were assigned certain places, their places have been altered by providing a specific order in which all the four of them should succeed. The fact that the position assigned to the sister in the Bombay Presidency has been altered to her disadvantage by the provisions of this section would not, in our opinion, justify the conclusion that the sister does not fall within the purview of this section. If, as the Privy Council have observed, this Act was intended to alter the old order of succession in Hindu law and if it applies to the parties before us even though they are governed by Mayukha, it seems to us unimportant and almost irrelevant to consider whether in applying the provisions of this section the sister's position is affected either to her benefit or to her detriment. Section 2 says that a son's daughter, daughter's daughter, sister and sister's son shall succeed after a father's father and before a father's brother, and they shall do so in the order so specified. This is now a part of the general law of succession under Mitakshara and effect must be given to it as such. The decision of the Privy Council in Sahodra v. Ram Babu makes this position quite clear. We must therefore hold with all respect that the contrary view which was accepted by a Bench of this Court in Shidramappa's case 35 Bom. L. R. 397 : A. I. R. 1933 Bom. 272 is no longer good law.

8. We may in this connection incidentally refer to three decisions of this Court where Shidramappa's case, 35 Bom. L. R. 397 : A.I.R. 1933 Bom. 272 has been referred to. In Ambabai Bhaichand v. Keshav Bandochand : AIR1941Bom233 , Divatia J. referred to the obiter dictum of Rangnekar J. that the sister's position in the Bombay Province was the result of local usage, but refused to apply that observation or to extend it to the case of the paternal aunt on the ground that the decisions in regard to the paternal aunt were not based upon proof of any usage at all.

9. In Bai Mahalaxmi v. Deputy Nazir, District Court, Broach : AIR1943Bom213 , the contest was between a full sister and a half-sister and it was held that amongst the two the full sister is the preferential heir. Shidramappa's case (35 Bom. L. R. 397 : A.I.R. 1933 Bom. 272 was cited before the Court and the reasoning adopted by the learned Judges was challenged. Broomfield J. was apparently impressed with the arguments urged against the judgment in Shidramappa's case 85 Bom. L. R. 397 : A. I. R. 1938 Bom. 272 because he observed that the reasoning in the said case was by no means convincing. Nevertheless he was not satisfied that there was any sufficient reason for referring the question to a Full Bench because the plaintiff's case was bound to fail in any event. He also took note of the fact that Hindu law was in the process of being codified and expressed the hope that in all probability the Act of 1929 would shortly become obsolete. It may incidentally be pointed out that the observation of Broomfield J. that Shidramappa's case, 35 Bom. L. R. 397 : A. I. R. ) 1933 Bom. 272 had decided that Act II [2] of 1929 did not apply to Bombay is inaccurate and somewhat misleading.

10. In Virbhadrappa Rachappa v. Babu : AIR1947Bom1 , Lokur J. held that Act II [2] of 1929 applies to the Province of Bombay, but did not feel called upon to consider the question as to whether the sister's position was affected by this Act or not.

11. But even if the view of this Court in Shidramappa's case 35 Bom. L. R. 397 : A.I.R. 1933 Bom. 272 as to the effect of the provisions of Section 2 of the Act is not regarded as good law any longer, the question still remains whether the position of the sister can be said to be saved by reason of the exception provided in Section 3 (1). As I have already mentioned Baker J. was quite unwilling to exempt the sister on this ground because he expressly stated that notwithstanding the opinion of Sir Dinshah Mulla to the contrary he felt it would be unsafe to do so. Rangnekar J., however, was prepared to hold that the sister's position in the Bombay Province was the result of local custom having the force of law and as such did not come within the purview of the Act at all. Mr. Patel has argued that we should accept this view of the matter and should hold that the sister must succeed in preference to the daughter's daughter. We must, therefore, consider whether it could be legitimately held that the position of the sister as recognised in the Bombay Province is referable to local custom having the force of law.

12. It is well known that the three principal sources of Hindu law are the Shrutis, the Smritis, and the conduct of the good or the approved usage (vide Manu, ii, 12, Yajnavalkya, i, 7). The Sanskrit word for custom which is used both by Manu and Yajnavalkaya is 'Sadachara' or the usage of virtuous men. Manu himself has defined this term in these words : 'The custom handed down in regular succession since times immemorial amongst the chief castes and the mixed races of the country.' (Vide Manu, ii, 18). The word Shruti literally means what was heard and refers in the main to the Vedas, since it is believed that the Vedas contained the very words of the Deity as they were heard by the several seers. The Vedas, however, contain very little of secular law and they do not make any appreciable contribution in the matter of Hindu law with which civil Courts are concerned. Smritis literally mean what is remembered. These Smritis consist of compilations handed down by the sages of antiquity. It is the Smritis that constitute the main source of Hindu law. In due course of time, however, several commentaries came to be written by reputed authors on these Smritis and it is these commentaries that virtually usurped the place of importance amongst the sources of Hindu law. It is well recognised that the rules of law enunciated in these commentaries should be treated with respect in the places where those respective commentaries prevail. The third source of Hindu law is custom or usage. It may either be a family or a local custom or usage. A local custom is one which binds all persons in the local area where it prevails and it differs from a family custom inasmuch as the latter binds only the members of the family. It is, however, important to remember that when local custom or usage is mentioned as a source of Hindu law, it means that such a custom or usage purports to modify the law and claims to have force independently of it. Such custom must be ancient, certain and reasonable, and being in derogation of the general rules of law, it has to be construed strictly : vide Hurpurshad v. Sheo Dyal 3 I.A. 259 : 26 W. R. 55 . In this connection it is necessary to bear in mind the distinction between the law as enunciated in the Smritis or the commentaries on them or as laid down in judicial decisions which are based on these commentaries and the law which results from local usage or custom. Both the commentaries and the local usage are independent sources of Hindu law, and in the case of usage if it is properly proved Hindu law provides that such usage 'will outweigh the written text of the law' : Collector of Madura v. Moottoo Ramalinga Sathupathy 12 M. I. A. 397: 1 Beng, L. R. 1 P. C.. Bearing this position in mind let us see whether it would be correct to hold that the position of the sister in the line of succession in the Bombay Province is the result of local usage.

13. The law of inheritance so far as is relevant to the present question is based on this text of Yajnavalkya :

iRuh nqfgrjSo firjkSHkzkrjLrFkkA

rRlqrk xks=tk ca/kq% f'k';%lczpkfj.k% AA 135AA

,'kkeHkkos iwoZL; /kuHkkxqkrkskj%A

Lo;krL; g;iq=L;loZo.ksZ'o;a fof/k% AA136AA

'The lawfully wedded wife and the daughters also, both parents, brothers likewise, and their sons, gentiles (or agnates), cognates, a pupil and a fellow student on failure of the first among these the next in order is heir to the estate of one who departed for heaven leaving no male issue : this rule extends to all classes.' (Yajnvalkya, II, 135-136).

14. It is on this text that the lines of succession as set out by Vijnaneswara in his Mitakshara and by Nilakantha in his Vyavahara-Mayukha are ultimately based. Mitakshara does not refer to the sisters as heirs to the property of a divided male, nor is there any indication in the Mitakshara that the word bhratarah (brothers) includes sisters. Thus, on the question as to the sister's position in the line of succession Mitakshara is silent. Nilakantha, the author of Vyavahara-Mayukha, however, puts the sister after the father's mother and before the father's father. This is how he deals with the question :

^^Hkzkr`iq=kHkkos xks=tk%lfi.Mk%A r=kI;knkS firkeghA ekr;Zfip o`kk;ka fir`ekZrk gjs}ue~&bfreuwDrs;% 9&217A ;|ih;a ekrqjUrja Jqrk rFkkfi cde&Hkzkr;`iq=kUrs'kqe/;s] fuos'kk;ksxknkxUrwukeUrs foos'kk bfr on~Hkzkr`iq=kUrs fuos';kArnHkkos HkfxuhAA vuUrj% lfiMk|LrL; rL; /kua Hkosr~ bfr euwDrs%9&187

cgoks Kkr;ks ;= ldqY;kckU;/kokLrFkkA ;LRokl&rjLrs;'kka lksuiR;/kua gLrs bfrAAc`gLiR;qDrs% rL;k vfi Hkzkr`xks= mRisRosu xks=tRokfo'ks'kkPp lxks=rkija ukfLrA u p lk= /kuxzg.kiz;kstdRosuksDrkAA

'In default of brother's sons, succeed the Gotrajas who are Sapindas. Among them also the first is the Paternal Grandmother under the text of Manu viz :--'And if the mother also be dead, the father's mother shall take the heritage.' (9 217) Although she is (here) mentioned immediately next to the mother, still as there is no (place of) entry for them in the compact series (of heirs) ending with the brother's sons, the is to be entered at the end after the brother's sons after the manner of 'the entry of the uninvited at the end'. In default of her comes the sister ; for says Manu : 'To him who is the nearest sapinda the inheritance shall belong' (IX, 187), Brihaspati says: 'Where there are many (claimants), viz. the Jnatis, the Sakulyas and also the Bandhavas he who is the nearest among these, shall take the wealth of a childless man.' Being born in her brother's gotra, she also is in no respect other than a gotraja. Indeed she has no Sagotrata, bat that has not been mentioned here as an operating cause for the right of inheritance.'

15. It will thus be seen that Nilakantha gives this higher place to the sister on the ground that she is a gotraja (born in the same gotra as) of the propositus. In this connection it may be pointed out that the word 'gotraja' is interpreted by Mitakshara as 'samana gotra' that is to say, having the same gotra as the deceased. If this interpretation is strictly applied to the case of the sister, it may be difficult to assign the higher position to her in the line of succession, because under Hindu law though a female is born in the gotra of her father, she loses the gotra on her marriage since after her marriage she adopts the gotra of her husband:

Loxks=kn~-

Hkz';rs ukjh fookgkRlIres i}sALokfexks=s.k drZO;k rL;k% fi.Mksndf;kA

10 Bom. L. R. 389

32 Bom. 300

11 Bom. 285

'it must not be supposed that the Vyavahara Mayukha presents a development of the Hindu law connected in any peculiar way with the religious or social system of the Gujaratis.'

In our opinion the special family or local custom to which Section 3 (1) refers must be such a custom as is in derogation of the law of the school governing the parties. We are not prepared to hold that the Maharashtra or the Mayukha school of law can itself be treated as local custom; for that indeed is what Rangnekar J.'s view involves. Act II [2] of 1929 purports to modify the Hindu law as enunciated in the commentaries and as laid down in judicial decisions. That being our view we must hold that the position which has been assigned to the sister by judicial decisions in this province must be deemed to be affected by Section 2 of Act II [2] of 1929. It is not covered by the saving clause contained in Section 3 (a), since it was obviously based on the interpretation of the Mayukha and the Mitakshara by the Courts in this Province. That being our view, we must hold that the daughter's daughter is entitled to succeed in preference to the sister.

16. The result is the appeals succeed and the plaintiffs' suits must be dismissed. In the circumstances of this case the fair order as to costs would be that the respondents should pay the appellants' costs in the second appeals before us and parties should bear their own costs in the Courts below.


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