Grover, J. - (1.) This is an appeal by certificate from a judgment of the Calcutta High Court.
(2.) The facts may be briefly stated. One Ratnamala Dassi who was governed by the Bengal School of Hindu Law as modified by the Hindu Succession Act, 1956, hereinafter called the Act, died intestate in January 1964 leaving no issue or lineal descendants. Her husband Monmotha Nath Dutt had pre-deceased her. The said Ratnamala Dassi left her surviving the appellant and respondents 2 and 3, the brothers of her husband and respondent 1, Urmila Sundari Dassi her husband's sister. In 1964 respondent No. 1 instituted a suit for a declaration that as an heiress of Ratnamala Dassi she had 1/4 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 appearance and took up the plea in his written statement that under the Act he and respondents 2 and 3 being the brothers of the husband of the deceased Ratnamala Dassi were the heirs in preference to respondent 1 who was the sister of the deceased's husband. 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 1/4 share in the estate left by Ratnamala Dassi. The appellant preferred an appeal to a Division Bench which was dismissed.
(3.) The sole point which has to be considered is whether, according to the order of succession as laid down in Class II of the Schedule to Section 8 of the Act, brother would succeed in preference to the sister or whether the brother and sister would succeed jointly having equal shares According to Section 15 (1) when a female Hindu dies intestate her property devolves according to the Rules set out in Section 16. Section 15 divides the groups of heirs of a female dying intestate into five categories described 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 Sec. 15 shall be and the distribution of the intestate's property among those heirs shall take place according to the following rules: Rule 1. "Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2.... ............. Rule 3. The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the 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 Dassi, we have to turn to Sec. 8 to find out who would have been his heirs. Section 8 reads: Section 8. "The property of a male Hindu dying intestate shall devolve according to the provisions of this chapter- (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II 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 agnate, then upon the cognates of the deceased." The Schedule mentioned in Section 8 to the extent it is material is reproduced below:- CLASS I "Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased's son of a predeceased son; widow of a predeceased son of a predeceased son. CLASS II I. Father. II. (1) Son's daughter's son, (2) son's daughter'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 Schedule those in Class I shall take simultaneously and to the exclusion of all other heirs and those in the first entry in Class II shall be preferred to those in the second entry and so on. Section 11 is to the effect that the property of an intestate shall be divided in any one entry in Class II of the Schedule so that they share equally.;