Annagouda Nathgouda Patil vs Court Of Wards And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 115 of 1950

Decision Date: 17 December, 1951

Coram: B.K. Mukherjea, M. Patanjali Sastri, Vivian Bose

In the matter titled Annagouda Nathgouda Patil versus Court of Wards and another, the Supreme Court of India delivered its judgment on the seventeenth day of December, 1951. The opinion was authored by Justice B. K. Mukherjea, who sat with Justices M. Patanjali Sastri and Vivian Bose. The petitioner was identified as Annagouda Nathgouda Patil and the respondents were the Court of Wards and an additional party. The case is reported in the 1952 volume of the All India Reporter at page 60 and also appears in the 1952 Supreme Court Reports at page 208. Subsequent citations of the decision include references in the 1970 Supreme Court Cases at page 789 and in the 1970 Supreme Court Reports at page 1643.

The central issue concerned the applicability of the Hindu Law of Inheritance (Amendment) Act, specifically Act II of 1929, to the succession of property belonging to a Hindu female who died unmarried. The amendment act introduced, among other classes, the daughter’s daughter, the sister and the sister’s son into the line of succession between the grandfather and the paternal uncle for the separate property of a Hindu male who dies intestate. The Court observed that the provisions of the amendment act were confined to the separate property of a Hindu male intestate and did not modify the law governing any other category of a Hindu male’s property. Moreover, the amendment act was not intended to regulate succession to the property of a Hindu female. Consequently, the Act could not be invoked to determine the heirs of a Hindu woman with respect to her stridhan property. According to the prevailing law, when a Hindu woman dies as a maiden, her property first devolves to her uterine brothers, then to her mother, followed by her father; if the mother and father are absent, the property passes to the nearest relatives, meaning the sapindas of the father and, failing them, the sapindas of the mother, in accordance with the order of propinquity. Under both the Mitakshara and Mayukha systems of succession, the son of a paternal uncle is entitled to succeed before the sons of a sister. The Court referred to earlier authorities that supported this view, including Manda Mahalakshmamma v. Mantravadi (I.L.R. 1947 Mad. 23), Shakuntala Bai v. Court of Wards (I.L.R. 1942 Nag. 629), Taluhraj Kuar v. Bacha Kuar (I.L.R. 28 Pat. 150), and Kuppuswami v. Manickasari (A.I.R. 1950 Mad. 196). It noted that other decisions such as Shamrao v. Raghunandan, Mst. Charjo v. Dinanath, Kehar Singh v. Attar Singh, and Indra Pal v. Humangi Debi were not approved.

The judgment was rendered in Civil Appeal No. 115 of 1950, an appeal from a decree of the Bombay High Court dated the fourteenth of March, 1945, which itself affirmed a decree dated the fifteenth of March, 1941, of the First Class Subordinate Judge of Satara in Civil Suit No. 890 of 1938. Counsel for the appellant was represented by an advocate assisted by another advocate, while counsel for the first respondent appeared before the Court, and the Attorney-General for India, assisted by another advocate, represented the second respondent. The judgment was delivered by Justice Mukherjea on the seventeenth of December, 1951, and it set out the Court’s analysis and conclusions regarding the proper rules of succession applicable to the property in dispute.

In this case the appeal concerned a decree issued by a Division Bench of the Bombay High Court on the fourteenth day of March, 1945. That decree affirmed, on appeal, the earlier decision of the First Class Subordinate Judge in Satara that had been rendered in Civil Suit number 890 of 1938. The parties who are now before the Court had originally instituted the suit as plaintiffs in the first-instance court to prove their title to the property that is identified as the Chikurde Estate. They asserted that, according to Hindu law, they were the nearest heirs of Bhimabai, who was admitted by all parties to be the last lawful holder of the estate. The suit was initially started against a single defendant, namely the Court of Wards of Satara, which had taken possession of Bhimabai’s property while she was still alive and continued to hold it after her death. Subsequently, three additional defendants, identified as defendants 2, 3 and 4, entered the proceedings by claiming rival rights of succession to the same estate; the trial court allowed them to intervene and they were joined as parties-defendants. Throughout the litigation the Court of Wards, now designated as defendant 1, maintained a neutral stance and expressed its willingness to surrender the estate to whichever person the Court would later determine to be the rightful successor. The lower courts rejected the claims presented by defendants 2 and 3, and those parties did not press their contentions in the present appeal. Consequently, the only contesting parties before this Court are the plaintiffs on one side and defendant 4 on the other, and the dispute pivots on the question of which of them possesses the preferential right to succeed to the Chikurde Estate after the death of Bhimabai.

To understand the material facts and the positions of the parties, the Court referred to a genealogy that both sides accept as accurate. At the head of the pedigree stands Vithalrao, who died in 1896; he was the common ancestor of all claimants and held the disputed land as a watan estate attached to the hereditary Deshmukhi service. Vithalrao was succeeded by his son Ganpatrao, who died in 1914. Ganpatrao’s brothers were Nilkanthrao and Anandrao Tangawa alias, who died in 1899 and 1913 respectively. From Nilkanthrao descended a daughter named Anandibai, who is identified as defendant 2, and a daughter Krishnabai, who is identified as defendant 3. Anandrao Tangawa adopted Vithalrao, who is identified as defendant 4, and Krishnabai later adopted a person named Babasaheb on 4-November-1924. The record also shows that Firangojirao, a son of Nilkanthrao, died without issue; he had married Tanakka, who predeceased him on 15-November-1919, and thereafter married her sister Gangabai on 14-February-1924. The surviving children of Vithalrao’s line included Nathgauda, Annagauda and Balgauda, who are plaintiffs 2, while Bhimabai’s daughter is plaintiff 1 and also appellant 2. Both parties agreed that Vithalrao had received a Sanad dated 28-November-1892 under the Gordon Settlement. The purpose of that settlement was to commute the services owed by certain watandars in the region and to relieve them from the performance of duties attached to their offices, on terms mutually agreed between the Government and the watandars.

The settlement between the Government and the watandars was recorded in a number of Sanads, one of which was issued to Vithalrao in 1892. After this settlement Vithalrao remained a watandar as defined by the Bombay Act of 1874, and the property in dispute was an impartible estate that followed the rule of primogeniture. Vithalrao died in 1896 and, under the same rule, his eldest son Ganpatrao succeeded to the estate. Ganpatrao died without children in 1914, leaving two widows, Anandibai and Indirabai; Anandibai is identified as defendant number two in the present suit. Both of Ganpatrao’s brothers, Nilkanthrao and Anandrao, had predeceased him. Nilkanthrao left one son, Firangojirao, and two daughters, while Anandrao died without issue, leaving only his widow Krishnabai, who later adopted Vithalrao, the person who is now defendant number four. In his will Ganpatrao bequeathed all of his watan and non-watan properties to Firangojirao, and Firangojirao succeeded to the estate both by the will and by the law of lineal primogeniture because he was then the sole male member of the family. Firangojirao died in 1919, leaving his only child, a minor daughter named Bhimabai. On 23 September 1921 Bhimabai’s name was entered in the village records as the watandar in place of her father, and in the following year the Court of Wards at Satara assumed supervision of her estate.

On 11 October 1923 the Government of Bombay issued Resolution No A-471, declaring the Chikurde Deshmukh watan to have lapsed to the Government, apparently on the ground that there was no male heir after Firangojirao’s death. Consequently a new entry was made in the village register indicating that Bhimabai was not a watandar but merely the heir of Firangojirao; the lands were described as having been converted into ryotvari lands after forfeiture by the Government and were subjected to full assessment. On 4 November 1924 Krishnabai, the widow of Anandrao, formally adopted defendant number four as a son of her husband. Bhimabai died unmarried on 27 January 1932, and her estate continued to be managed by the Court of Wards. The appellants, who are the sons of Firangojirao’s sisters, filed this suit on 5 August 1938. Their principal argument is that, following the Government’s resolution of 11 October 1923, the Chikurde estate ceased to be a watan property and its succession should be governed by the general principles of Hindu law rather than by the provisions of Act V of 1886, which would otherwise postpone a claim through a female to a male member of the watan family. They contend that the property had become the absolute property of Bhimabai, and since she died unmarried, the nearest heirs of her father are entitled to succeed to it.

In this case the plaintiffs argued that they should succeed to the disputed property according to the general rules of Hindu law. The record showed that defendant number four, who was also respondent number two on the appeal, had been inserted as a party-defendant after the suit had been instituted, and on his behalf it was asserted that because he had been lawfully adopted by Anandrao on 4 November 1924 he became the nearest heir to the property that was described as a watan estate, and he therefore prayed that the court should issue a declaration in his favour. In addition, defendant number three claimed that she had been adopted as a son to her husband Ganpatrao by Anandibai, identified as defendant number two, sometime in February 1939. The trial court, after evaluating all the evidence, concluded that the Chikurde estate was an impartible property governed by the rule of primogeniture. Accordingly, the court held that, being an impartible joint estate, the rule of survivorship continued to apply and that upon Ganpatrao’s death without leaving any son, the estate passed by survivorship to the next senior branch, namely the branch of Firangojirao. The subordinate judge further observed that after the death of Firangojirao, Bhimabai possessed only a provisional interest in the estate, an interest that could be divested by the emergence of a male member through adoption within the family; consequently, when defendant number four was adopted by the widow of Anandrao, Bhimabai was deemed to have been legally divested of her interest. In the same view, the subordinate judge expressed the opinion that the Government’s resolution treating the Chikurde estate as lapsed was premature and could not be given legal effect so long as there were widows alive who were capable of adopting sons. The trial judge also held that even if Bhimabai were considered to have held the property as a watan until her death, the next heir under the Bombay Act V of 1886 would be defendant number four and not the plaintiffs. As a result, the trial court dismissed the suit filed by the plaintiffs. The aggrieved plaintiffs then appealed to the High Court of Bombay, where the appeal was heard by a division bench consisting of Justices Macklin and Rajadhyaksha. The learned judges dismissed the appeal and affirmed the trial court’s decision, although the reasons they furnished differed from those articulated by the trial judge. The High Court, construing the Sanad granted to Vithalrao in 1892, held that the order of lapse or forfeiture of the watan estate issued by the Government in 1923 on the ground of the absence of male heirs was not a valid legal order; while the Sanad authorised the Government, in the absence of male heirs, to resume the watan in the sense of making the property liable to full assessment, the other incidents of the watan estate continued to exist. Consequently, the Court concluded that the provisions of Act V of 1886 would continue to govern succession to the property.

In the appeal before this Court, the plaintiffs contended that the trial court and the High Court erred in holding that the Chikurde estate retained its watan character after the Government, by its resolution dated 11 October 1923, had resumed the estate. The plaintiffs argued that if the estate were to be regarded as non-watan property, they would be the nearer heirs to Bhimabai than defendant No 4. In a second line of argument, the plaintiffs submitted that even assuming the estate remained a watan in Bhimabai’s hands, Bhimabai should be treated as a true watandar, thereby creating a fresh line of descent; under that view, the plaintiffs would fall within the family of watandar as defined by Bombay Act V of 1886, whereas defendant No 4 would lie outside that family. While these points are worthy of consideration, the Court noted that its present view obviated the need to examine their merits in detail. The learned judges of the High Court had proceeded on the premise that, should the property be classified as non-watan in Bhimabai’s possession, the plaintiffs would enjoy preferential succession rights. The Court observed that only if the property were a watan would the provisions of the Bombay Act of 1886 apply, which would bar the plaintiffs—who are descended through females—from succeeding before defendant No 4, who had become a male member of the family by adoption. Counsel for defendant No 4, who is respondent No 2 in this appeal, asserted that the High Court’s assumption was incorrect. He maintained that even if the estate were a non-watan stridhan belonging absolutely to Bhimabai, the defendant, as an heir to Bhimabai’s absolute property, would possess superior rights to those of the plaintiffs. Because this issue was not addressed in the judgments of the lower courts, the Court heard extensive arguments from counsel on both sides. After careful consideration, the Court concluded that the contention raised by the learned Attorney-General was well-founded and must prevail. For the purpose of resolving the dispute, the Court assumed that the suit property was indeed a non-watan stridhan of Bhimabai and asked which of the rival claimants would be the nearer heir upon her death under Hindu law of inheritance. It was conceded that Bhimabai died a maiden, and that, according to Hindu law, a maiden’s property first passes to her uterine brothers, and in their absence to her mother, and thereafter to her father.

This passage explains that the authority of the ancient Baudhayana text, which is accepted by all commentators, provides the rule that when a mother and a father both die, succession passes to their nearest relations. The treatise Viramitrodaya adds that in the absence of both parents, the estate passes to those nearest relations of the parents. The courts have repeatedly held that the phrase “nearest relations of the parents” refers to the sapindas of the father, and if none exist, to the sapindas of the mother, arranged in order of closeness. In the present dispute, both the plaintiffs and defendant number four are sapindas of Firangojirao. The plaintiffs are the sons of Firangojirao’s sister, while defendant number four is the son of Firangojirao’s paternal uncle. It is not contested that, aside from the modifications introduced by the Hindu Law of Inheritance (Amendment) Act, also known as Act II of 1929, the position of a paternal uncle’s son in the line of heirs under the traditional Mitakshara system is considerably higher than that of a sister’s son, and that the Mayukha law, which governs the State of Bombay, does not alter this hierarchy. Under the Mitakshara law, the paternal uncle follows immediately after the paternal grandfather, and the uncle’s son follows the uncle. However, Act II of 1929 inserted four additional relations between the grandfather and the paternal uncle: the son’s daughter, the daughter’s daughter, the sister, and the sister’s son. Consequently, the paternal uncle and his son are displaced in favor of these four relations by the provisions of the 1929 Act. The critical question that arises is whether the provisions of this Act can be applied to determine the heirs of a Hindu woman concerning her stridhan property. The preamble of the Act states that its purpose is to change the order in which certain heirs of a Hindu male dying intestate inherit his estate. Section 1(2) explicitly limits the Act’s application to persons who, but for the enactment, would have been governed by the Mitakshara law, and it applies only to the property of males that is not held in coparcenary and has not been disposed of by will. Thus, the Act’s scope is narrowly confined to succession to the separate property of a Hindu male who dies intestate. It does not modify the law relating to any other category of male property, nor does it purport to regulate succession to the property of a Hindu female. Moreover, the Act does not render those four newly introduced relations statutory heirs under Mitakshara in every circumstance; it makes them heirs only when the propositus is a male and the property in question is his separate property.

In this case, the Court observed that the Act applies only when the propositus is male and the property in question is his separate property. The Court noted that whether this distinction between male and female propositus is reasonable is a separate question, but because the language of the Act explicitly makes the distinction, and the language is clear and unambiguous, no other consideration may be taken into account. The Court stated that this view has been adopted, and correctly so, in a number of decisions of the Madras, Patna and Nagpur High Courts (1). The Court also recognized that a contrary view has been expressed in certain decisions of the Bombay, Lahore and Allahabad High Courts (2). The reasoning adopted in most of the decisions that take the contrary view was summarised by Mr. Justice Somjee (3): “The Act is not sought to be applied to determine the succession to the stridhan of a Hindu maiden but is sought to be used by the petitioner to ascertain the fourth class of heirs to the stridhan of a Hindu maiden mentioned at page 139 of Mulla’s Hindu Law… The heirs of the father at the time of her death have to be ascertained in accordance with the Hindu Law as it existed at the time of the death of Bai Champubai. Thus the Act comes into operation for ascertaining the order in which the heirs of her father would be entitled to succeed to his estate, because the heirs of the father … would be entitled to succeed to him if he died on August 3, 1937, would be the heirs of Bai Champubai in the absence of the uterine brother, the mother and the father.” The Court cited several authorities regarding the heirs of the father: Manda Mahalakshmamma v. Mantravadi (I.L.R. 1947 Mad. 23); Shakuntalabai v. Court of Wards (I.L.R. 1942 Nag. 629); Talukraj Kuer v. Bacha Kuer (I.L.R. 26 Pat. 150); Kuppuswami v. Manickasari (A.I.R. 1950 Mad. 196) for the first group, and Shamrao v. Raghunandan (I.L.R. 1939 Bom. 228); Mst. Charjo v. Dinanath (A.I.R. 1937 Lah. 196); Kehar Singh v. Attar Singh (A.I.R. 1944 Lah. 442); Indra Pal v. Humangi Debi (I.L.R. 1949 All. 816) for the second group. The Court further explained that the purpose of the enquiry is to determine who the successor to the daughter’s estate is, and therefore the operation of Act II of 1929 is excluded by its express terms; for that purpose the Act must be treated as non-existent. Consequently, the heirs of the stridhan must be identified by reference to the general provisions of Hindu law of inheritance, ignoring the statutory heirs introduced by the Act. The Court observed that the approach taken in the cited cases is fallacious because it treats the Inheritance Act of 1929 as amending Mitakshara law in all cases, whereas the Act has no effect when the succession to a male’s separate property is not the subject of the investigation.

In this case the Court observed that the parties had improperly regarded the Inheritance Act of 1929 as if it altered or modified the Mitakshara law of succession in every circumstance and for every purpose. The Court clarified that the Act has no effect in situations where the question before the Court does not involve succession to the separate property of a male person. Accordingly, the Court concluded that, even if the property in dispute were held to be non-watan and to belong absolutely to Bhimabai, the plaintiffs could not be considered the nearest heirs of Bhimabai. As a result, the Court dismissed the appeal. Regarding costs, the Court made no general order for costs in the appeal, but it directed that Defendant No. 1, the Court of Wards, shall bear its own costs on an attorney-and-client basis out of the estate. The Court further affirmed that the order for costs previously made by the lower courts shall remain in force. The appeal was therefore dismissed. The Court’s record notes the agents appearing for each party: the appellant was represented by an agent identified as M.S.K. Sastri; the first respondent was represented by an agent identified as P.A. Mehta; and the second respondent was represented by an agent identified as K.J. Kale.