SATYA CHARAN DUTTA versus URMILLA SUNDARI DASSI & ORS.

294

SATYA CHARAN DUTTA v. URMILLA SUNDARI DASSI & ORS. E::ptember 9, 1969 [J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] Hi11d11 S11ccessi01> Act (30 of 1956), ss. 8, 9, 11,. 15 and 16: Hindu widow dying intestate-Husband's brothers and a sister on~y heirs -Property, that of llusba1ul-If brolhers take in preference to .nsler or all take eaual/y.

Under ss. 15 and 16 of the Hindu Succession Act, 1956, which deal with tules regarding ~ucccssion to the property of a fcn1ale Hindu, where the properly is that of her husband, the heirs would be those set out in s. 8. Under s. 8, there arc two classes of heirs mentioned in the Schedule to the Act. Jn Class 11 there are lX entries and only in entries •II, Ill and IV the heirs arc mentioned as against arabic numerals. 'Brother' aoJ 'sister' arc mentioned us items (3) aml ( 4) in entry-II of Class II. Section 9 lays down that among the heirs specified in the Schedule those in Class l shall take simultaneously and to the exclusion of all other heirs and thooe. in the ell/ry-l in Ciaos 11 ohull be preferred to those in elllry·ff and 50 on.

A Hindu ·widow, in possession of her <lcccasc<l husband's properties, died in 1964. She left no lineal descendants, but her huoband had three brothers and a sister surviving. On the, question whether the three brothers were entitled to succeed to the property in preference to the sister, on the. ground that "brother' is mentioned as itcn1 (3) of cntry.JJ of Class II, whereas 'sister' is nlcntioncd as iten1 (4),

HELD : lf the intention \\-'as to give preference an1ong ·the heirs in Class II accon.ling to arabic nun1crals treating such numerical iten1 as a separate entry, some provision to that effect would have been made in s. 11. Section 11 states that the property of an intestate shall be divided among the heirs specified in any one t•11try in Class II so that they share equally, and the language in ss. 9 and 11 is not consistent \\·ith the view that arabic nun1erals constitute entries within the meaning of s. 11. Further, the scheme _of the Act is that male and female heirs should get equal treatment, und, in Class I, nu1le and fcn1ale heirs have been treated as equal. There is no reason why any distinction ihould have been made among the heirs in Class Jl on the ground of sex. Therefore, it is not possible, in the absence: of any indication in the sections or in the Schedule itself. to attribute such a radical departure fron1 the genera\ scheme of classification that, in case oi three entries only in Class 11, (entries II, 111 and IV), the Legislature intended to create an order of preference and lay do\vn the san1e by the use of arubic numerals, [299 C D, H; 300 1!-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1356 of

1956.

Appeal from the jud~ment and de.:ree dated De.:ember 3, 1965 of the Calcutta High Court in Appeal from Original Decree No. 85 of 1965.

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s. c. DUTTA v. u. s. DASS! (Grover. 1.)

295

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D. N. Mukherjee, for the appellant.

M. C. Bhandare, f>ratap Singh and K. Rajendm Clwudlzuri,

for respondent No. l.

The· Judgment of the Court was delivered by

Grover, J. This is an appeal by certificate from a judgment of

the Calcutta High Court.

The facts may be brielly stated. One Ratanamala Dassi who was governed by the Bengal School of Hindu Law as modi lied by the Hindu Succ;ession Act 1956, hereinafter called . the lmeal Act, died intestate in January 1964 leaving no i;sue or descendants. Her husband Monmotha Nath Dutt had pre deceased her. The said Ratnamala Dassi le-ft her surviving the appellant and respondents 2 and 3, the brothers of her husband and respondent I, Urmilla Sundari Dassi her husband's sister. In 1964 respondent No. I instituted a suit for a declaration that as an heiress of Ratnamala Dassi she had ± share in the movable and immovable property left by her and that she be allotted her share by partition of those properties. The appellant entered appear ance and took up the plea i11 his written statement that under the Act he and respondents 2 and 3 being the brothers of the hus band of the deceased Ratnamala Dassi were the heirs in prcfc· rcnce to respondent l who was the sister of the deceased's hus band. The suit was tried on the original side by a learned Single Judge of the Calcutta High Court who granted a preliminary decree on December 23, 1964 in favour of respondent 1 holding that she had J share in the estate left by Ratnamala Dassi. The appellant preferred an appeal to a division bench which was dismissed.

The sole point which has to be considered is whether accord ing to the order of succession as laid down in Class ii of the Schedule to s. 8 of the Act, brother would succeed in preference to t~e sister or whether the brother and sister would st.cceed jointly havmg equal shares ? Accordtng to s. 15 ( 1) when a female Hindu dies intestate her property devolves according to the Rules set out in s. 16. Section 15 divides the groups of heirs of a female dying intestate into five categories describe'i as Entries (a) to (e). We are concerned. in the present case. with Entry (b) which is "secondly, upon the heirs of the husband". Section 16 provides that the order of succession among heirs referred to in s. 15 shall be and the distribution of the intcstate's property among those heirs shall take place according to the followin~ Rules :

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Rule 1.-"Amonµ the heirs specified in sub-section (!) of section 15. those in one entry shalt be prcfcrrcu

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to those in any succeeding entry, and those included in the same entry shall take simultaneously. Ruic 2 ........................ .

Ruic 3. The devolution of the property of the in- testate on the heirs referred to in clauses (b), (d) and (e) of sub-section (I) and in sub-section (2) of sec tion 15 shall be in the same order and according to the same rules as would have applied if the property had been ihe father's or the mother's or 'the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death."

As the property in the present case was of the ·husband of Ratnamala D;issi we have to turn to s. 8 to find out who would huvc been his heirs. Section 8 reads :

Section 8 "The vropcrty of a male Hindu dying in testate shall devolve according to the provisions of this Chapter : -

(a) firstly, upon the heirs, being the relatives speci

fied in class l of the Schedule.

(b) secondly. if there is no heir of class I,

then upon the heirs, being the relatives specified in class ll of the Schedule

( c) thirdly. if there is no heir of any of the two classes, then upon the agnates of the deceased; and

( d) lastly, if there is no ngnalc, then upon the co;;

natcs of the deceased."

The Schedule mentioned in s. 8 lo the extent it is material is re produced below : -

CLASS l

"Son: daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a prcdc- ceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased so11.

CLASS II

I. Father.

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s. c. DUTT \'. lJ. s. DASS! (Gro1w. J.)

297

II. (I) Son's daughter's son. ( 2) son's daughtcr"s

daughter, (3) brother, ( 4) sister.

III ................ . IV ............... . v ............... . VI ............... . VII ............... . VIII ............... . IX ............... . Explanation ............. "

Section 9 lays down that among the heirs specified in the Sche· dule those in class 1 shall take simultaneously and to the exclu· sion of all other heirs and those m the first entry in class II shall be preferred to those in th.~ second entry and so on. Section 11 is to the effect that the property of an interstate shall be divided in any one entry in class II of the Schedule so that they share equally.

Before the High Court the contention raised on behalf of the appellant was that "brother" bein)l prefixed by arabic numeral 3 came before "sister" which word had the numeral ( 4) before it and that the ·object of using the numerals within a particular group lt was was to prescribe the order of precedence or preference. also argued that the use of the arabic numerals in groups II, Ill and IV of Class II must have some meaning; otherwise the Jegis· lature would have used such numerals in respect of the heirs not only in class II but in class I as well. The learned judges of the division bench felt that the use of the arabic numerals appeared to be redundant but "the combined effect of this section read with the others seems to be that the legislature intended that the heirs named after numerals IT,TII IV composed thre.e entries only".

We are unable to accede to the argument that the use of arabic numerals is decisive of the point whether or not the heirs specifi· It ed in entry II of class II succeed simultaneously and equally. is inconceivable that a matter. of such importance should have If the intention been left. to the employment of numerals alone. of the legislature was that each class of relatives shown against the arabic numerals constituted an entry express and specific pro visions to that effect would have been made in the substantive sec· tions of the Act. Indeed s. 11 says quite clearly that the property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally. That languag.e would not be consistent with the view that the heirs shown a)lainst the arabic numerals constitute an entry within the m~aning .of s. 11. The Act was meant to lav down a compre hensive and uniform system of inheritance ~nd its scheme is to

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rules

prescribe a set of rules for succession to the property of male and female Hindus dying intestate. Sections 8 to 13 contain. the. general rules relating to succession to the property of a male Hmdu including the matter of ascertainment of shares. Sections 15 and 16 contain the general rules affecting succession to the pro perty of a female Hindu. The relating t~ preferential heirs are given in s.10. If the intention was to give preference among the heirs in Class II according to arabic numerals treating the same as a separate entry some provision would undoubtedly have been made in s.11 for that purpose. As noticed before it is that section which deals with the distribution of property among heirs in class II of the Schedule. Indeed s.11 would be wholly unnecessary if each one of the heirs mentioned in each entry of class II were to take preference to the next one in the same entry. It is also significant that in class I male and female heirs have been treated as equal. There is no reason why any distinction should have been made among the heirs in class II on the ground of the heir being male or female. For instance in entry II in class II a brother would have preference over the sister and in his presence the later would succeed if the submission on behalf of the appellant is to be accepted. No reason or justification has been suggested ~1milarly on the appellant's argument the son's daughter's son should have preference over the son's daug;lter's daughter. That again would run counter to the whole scheme of the Act that male and female It must be remembered that heirs should get equal treatment. the Act incorporated one of the principal reforms which had become a pressing necessity owing to the changed social and .succession there economic conditions in Hindu society that in should be equal distribution between male and female heirs.

for making such a distinction.

It is true that the draftsmen while employing the arabic numerals in entries II to IV of class II only are likely to have some thing in mind but on the whole and in view of the reasons which have been given above no particDlar significance can be given to the use of the arabic numerals. Generally speaking numbers or numerals are employed in a statute for the sake of convenient and easy reference but their use cannot override the statutory pro visions. Nor is it possible in the absence df any indication in the sections or in the Schedue itself to attribute such a radical departure from the general scheme of classification of heirs, as has been suggested, 'namely. that in case of three entries only in qlass IT the legislature intended to create an order of preference arid lay down the same by the use of arabic numerals.

There is no merit in this appeal which fails and it is dismissed

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with costs. ¥.P.S.

Appeal dismissed.