Decided on December 18,1967

HARPRASAD Respondents


- (1.) THE appellants had filed a suit for possession of agricultural lands and a house situate in village Maili. Tahsil Niwas, District Mandla. The suit was dismissed by the trial Court and the decree has been confirmed in appeal.
(2.) THE facts in the case are no longer in dispute. The property in suit originally belonged to one Nathu Lodhi. Nathu died leaving Mst. Mungia, his widow, as his sole heir. Mst. Mangia died in the year 1962. The appellants, Keshri and Dasrath, are Nathu's daughter's sons. Respondent No. 1, Harprasad, is his distant relation respondent No. 2, Chhabilal, is the son of Mst. Mungia by her previous husband, bhangi, and came with her when she married Nathu. Respondent No. 3, karodimal, is an outsider who did not appear at any time to contest the claim. The real dispute is between the appellants and respondent No. 2, Chhabilal. It is also not disputed that after the death of Nathu, Mst. Mungia came in possession of his estate as full owner under Section 14 of the Hindu Succession Act.
(3.) THE only question which arises in this appeal is whether respondent Chhabilal, who is not the son of Nathu but the son of the previous husband of Mst. Mungia, is entitled to succeed in preference to the appellants who are Nathu's daughter's sons. In this connection Sections 15 and 16 of the Hindu Succession Act are relevant. Sub-section (1) of Section 15 provides that the property of a female hindu dying intestate shall devolve firstly, upon the sons and daughters and the husband. It then goes to other heirs who are entitled to succeed. But we are not concerned with the Items (b) to (e) in that Section. Clause (b) of Sub-section (2), which is relevant for the present purpose, is as follows : " (2) Notwithstanding anything contained in Sub-section (1)- (a) (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. " This clause provides for the mode of succession to the property of the female hindu which she had inherited from her husband and states that the property goes to her husband's heirs. However, it has to be borne in mind that Clause (b)operates only "in the absence of any son or daughter of the deceased. " The deceased here obviously refers to the female Hindu. It is true that the words "notwithstanding anything contained in Sub-section (1)" exclude the provision in Subsection (1) in so far as the succession of the property inherited by a Hindu female from her husband is concerned. However, the special mode of succession Provided in Sub-section (2) itself restricts the application of Clause (b) to cases where there is no son or daughter. Where a son or daughter exists the heirs of the husband cannot succeed according to this sub-section and the property must go to the son or daughter.;

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