RAMA ANANDA PATIL Vs. APPA BHIMA REDEKAR

JUDGEMENT

(1.) The short question that falls for determination in this case is as to whether, a son by the first husband of a female Hindu is entitled to succeed to the property on her death inherited by her from her second husband under S., 15 of the Hindu Succession Act of 1956.

(2.) Facts in this case are not in dispute. One Durgappa Banoji Redekar was the owner of survey Nos. 48/1, 48/7, and 125/4 situate in village Manwad in Kolhapur district. Durgappa died leaving behind him no issues, male of female, but his widow Yamunabai. Yammunabai succeeded to the property on the death of Durgappa and enjoyed the property till her death on 6-8-1961. Yamunabai was thus alive on 17th June 1956, when the Hindu Succession Act of 1956, when the Hindu Succession Act of 19567 (herein after referred to as " the Act" ) came into force, and was in possession of the said property, and she thus became absolute owner of the same in view of S. 14 of the Act. Yamunabai left behind her the petitioner Rama, who is admittedly her son born to her from her first husband. after whose death she was married to Durgappa. The Circle Officer held inquiry in mutation proceedings under the Bombay Land Revenue Code to decide whose name should be mutated in the Revenue records as the occupants of the lands in place of Yamunabai. The petitioner claimed title to the property as the son of Yamunabai, while the respondents, nephews and grand-nephews of Durgappa claimed title to the property urging that they were entitled to succeed to the property by excluding the petitioner claimed title to the property as the son of Yamunabai, while the respondent, nephews and grand-nephews of Durgappa claimed title to the property urging that they were entitled to succeed to the property by excluding the petitioner under S. 15 sub-section (2) (b)of the Act. By an order dated 17-3-1962, the Circle Officer upheld by the petitioner to the District Deputy Collector, the order of the Circle Officer was set aside and the petitioner's claim to succeed to the property of Yamaunabai was upheld. The respondents then challenged this order in revision before the Commissioner set aside the order of the Deputy Collector and accepted the claim of the respondents to succeed to the property in dispute left by Yamunabai. The petitioner challenges this order of the Commissioner dated 24-9-1964 ink this Special Civil Application.

(3.) It is not in dispute that Yamunabai held the disputed property absolute owner. Therefore, the claim to the succession to her property is to be governed by the provisions of Section 15 of the Act. General law in regard to the succession to the property left by female dying instate is laid down in sub--section (1) of Section k15. According to this sub-section, property of a female dying intestate devolved firstly upon this sons and daughters of the deceased female and daughters of the deceased female Hindu. (including the children of any pre-deceased son or daughter). and the husband, and in their absence upon other heirs enumerated in clauses (b) to (e) of the said sub -section. Two exceptions have, however, been engrafted to this general law, and the said exceptions have been incorporated in clauses (a) and (b) of sub section (2) of Section 15. One exception is ink regard to the property inherited by such female Hindu from her father mother and the rule of succession laid down in this behalf is that such property, inherited by female Hindu from father or mother, is to devolve on the heirs of her father. This rule. however, is to operate only " in the absence of any son or daughter of the deceased (in any son or daughter of pre-deceased son or daughter)" The second exception is ink regard to the property inherited by such female Hindu from her husband or from her father - in- law and the rule of succession laid down in that behalf is that the property so inherited by the female Hindu and left by her dying intestate shall devolve upon the heirs of her husband. This again is to happen" in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter)" Thus the general law in regard to the succession to the property of a female Hindu dying intestate laid down in Section 15 (1)(a) is slightly altered by the exceptions engrafted in clauses (a) and (b) of sub-section (2) of Section 15, the only departure in subsection (2), is that the general law laid down in Section 15 (1)(a) , is that the words "and the husband" do not find place immediately after the words "in the absence of any son or daughter of the deceased (including the children l of any predeceased son or daughter)" in clauses (a) and (b) of sub-section (2) . Apparently, there fore, the property of a female Hindu dying intestate shall devolve firstly upon "the sons and daughters (including the children of any pre-deceased son or daughter)" without regard to the source of the property held by such a female Hindu dying intestate. The only departure in the event of the source of such property being the inheritance from her father or mother in clause (a) of Sec 15 (2) and from her husband or father - in-law in clsuse (b) of S. 15(2). is that the husband is excluded and is disentitled to succeed to the property left by a female Hindu dying intestate if such property is inherited from her father or mother. In fact, the contingency contemplated in Section 15(2)(b) can arise only after the death of her husband and, therefore, he cannot appear in the picture amongst the heirs who can claim to succeeded in that event. Thus the exception contemplated in sub-section (2) of Section 15 prima facie cannot appear in the picture amongst the heirs who can claim to succeed in that event. Thus the exception contemplated in sub-section (2) of Section 15 prima facie cannot come into operation as long as "the sons and daughters of the deceased female Hindu (including the children of any pre-deceased son or daughter)" are in existence. Petitioner admittedly is her son, though not form the husband from whom she had inherited the property. As long as he is alive, there cannot arise any occasion for respondents to succeed under Section 15(2)(b) of the Act.