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Khushal Vs. Sheo Shankar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1949All672
AppellantKhushal
RespondentSheo Shankar and anr.
Excerpt:
.....while the. humangi devi since reported in air1949all663 .from these cases as well as from the original text it would appear that three principles are well settled :(i) that in the scheme of succession to the stridhan property of a hindu female, in the absence of heirs of a higher degree, the property goes to the husband's heirs, (ii) that in determining the nearest sapinda of the husband the rules which apply to succession to the male would apply to the succession to stridhan property also, and (iii) that the doctrine of whole blood and half blood is confined to cases where the competition lies between the claimants of the same degree......to the propositus. it was conceded that if it were necessary to find the heirs to gajodhar's property sheo shankar would have preference over khushal and ram lal both. the contention, however, is that according to the mitakshara school by which the parties are governed the stridhan property of a hindu female devolves on the relations nearest in blood to the husband and that the rule which is applicable to succession to males has no application at any stage of the succession to a female. reliance is placed upon the following passage in viramitrodaya.(the wealth of a childless woman married in forms beginning with brahma, becomes her husband's. failing him it goes to the nearest consanguineous relations of the husband) and it is contended that the word (nearest kinsmen) connotes.....
Judgment:

Misra, J.

1. The controversy in this appeal relates to the devolution of the property of Mt. Kailasha who died on 10th April 1939, with-out leaving any issues. It must be presumed that she was married to Gajodhar in one of the approved forms of marriage. Her husband predeceased her and the competition now lies between the collaterals of her husband, namely, Sheo Shanker, defendant l, on the one hand and Khushal, plaintiff, and Ram Lal, defendant 2, on the other. Sheo Shankar is admittedly one degree higher than Khushal and Ram Lal but while Khushal and Ram Lal are full blood relations of Gajodhar, Sheo Shankar is only a half blood relation. The plaintiff sued for possession and desired to exclude Sheo Shankar in whose favour the property of Mt. Kailasha was mutated after her death but he failed in the Court of first instance as well as in appeal.

2. In second appeal the only point which arises for determination in view of the arguments advanced on behalf of the appellant is whether the relations of full blood are preferential stridhan heirs to those of half blood regardless of the degree of their relationship to the propositus. It was conceded that if it were necessary to find the heirs to Gajodhar's property Sheo Shankar would have preference over Khushal and Ram Lal both. The contention, however, is that according to the Mitakshara school by which the parties are governed the stridhan property of a Hindu female devolves on the relations nearest in blood to the husband and that the rule which is applicable to succession to males has no application at any stage of the succession to a female. Reliance is placed upon the following passage in Viramitrodaya.

(The wealth of a childless woman married in forms beginning with Brahma, becomes her husband's. Failing him it goes to the nearest consanguineous relations of the husband) and it is contended that the word (nearest kinsmen) connotes kinsmen allied by affinity or persons allied to each other by possession of particles of the same blood, the suggestion being that persons who have greater consanguinity are the persons who are nearest to the propositus and sapindas of the whole blood, therefore, howsoever remote in degree are preferential heirs to sapindas of half blood, I have no hesitation in rejecting this contention. As will be seen later, the matter is well covered by authority but if it were necessary to look into the original text the passages which would apply are contained in the Mitakshara, chap. 2, Section 11, plac. 9 to 11 which have been translated by Ghose in his Principles of Hindu Law as follows:

9. If a woman die 'without issue,' that is, leaving no progeny; in other words, having no daughter, nor daughter's daughter, nor daughter's son, nor son nor sons's son; the woman's property, as above described, shall be taken by her kinsmen; namely her husband and the rest, as will be (forthwith) explained.

10. The kinsmen have been declared generally to be competent to succeed to a woman's property. The author now distinguishes different heirs according to the diversity of the marriage ceremonies.

'The property of a childless woman married in the form denominated Brahma, or in any of the (unblamed modes of marriage,) goes to her husband : but, if she leave progeny, it will go to her (daughter's) daughters' : and, in other forms of marriage (as the Asura, etc.) it goes to her father (and mother, on failure of her own issue.)

11. Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajatapatya, the (whole) property, as before described, belongs in the first place to her husband. On failure of him, it goes to his nearest kinsmen (sapindas)....

3. The Mitakshara, it would thus appear, understands the expression as the nearest sapinda and the sole point which remains for determination is whether a remoter sapinda Ban be regarded as nearer than a sapinda higher in degree by reason of the fact that he is connected to the propositus by full blood while the. other is connected by half blood. There can be no doubt in view of the decision of their Lordships' Board in Ganga Sahai v. Kesri and Ors. A.I.R. (2) 1915 P.C. 81; Jatindra Nath Boy v. Nagendra Nath Boy and Anr. ; Garudas v. Mahant Laldas and Anr. and Mt. Sahodra v. Ram Babu , that the doctrine of preference of the whole blood to the half blood in case of succession to males is confined to the members of the same class and its application cannot be extended to persons standing in different degrees to the propositus. See also the unreported Full Bench decision of the Allahabad High Court in First civil Appeal no. 108 of 1940, Lala, Lachhmi Narain and Anr. v. Mt. Dropadi and Ors. and a recent unreported decision of a Division Bench of this Court in First civil Appeal No. 41 of 1944, Indrapal Singh and Anr. v. Mt. Humangi Devi since reported in : AIR1949All663 . From these cases as well as from the original text it would appear that three principles are well settled : (i) That in the scheme of succession to the stridhan property of a Hindu female, in the absence of heirs of a higher degree, the property goes to the husband's heirs, (ii) that in determining the nearest sapinda of the husband the rules which apply to succession to the male would apply to the succession to stridhan property also, and (iii) that the doctrine of whole blood and half blood is confined to cases where the competition lies between the claimants of the same degree. It follows that the Courts below were right in holding that Sheo Shankar's claim to succeed to the stridhan property of Mt. Kailasha was higher than the claim of Khushal and Ram Lal.

4. There is no substance in this appeal which fails and is accordingly dismissed with costs.


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