Atma Singh vs Gurmej Kaur (D) And Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11094 OF 2017 (arising out of SLP(C)No.22154 of 2012)

ATMA SINGH ... APPELLANT

VERSUS

GURMEJ KAUR (D) & ORS. ... RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

1. This appeal has been filed against the judgment

of the Punjab & Haryana High Court dated 14.07.2009

by which the High Court has dismissed the Regular

Second Appeal filed by the appellant.

2. The facts of the case are not in dispute and

lie in a very narrow compass. The appellant has

filed Civil Suit No. 220 of 2001 for a declaration

that the plaintiff is the owner and in joint Signature Not Verified Digitally signed by BALA PARVATHI possession of the half share of the land owned by Date: 2017.09.20 10:28:12 IST Reason:

Pal Singh deceased son of Narain Singh. Narain Singh 2

had three sons namely Atma Singh, the appellant,

Mohan Singh, respondent No.5 and Pal Singh. The

defendant No.1, Gurmej Kaur was wife of Narain

Singh. Narain Singh, who was the owner of land in

dispute died in the year 1952 intestate. He left

behind his above three sons and wife Gurmej Kaur.

Gurmej Kaur immediately after death of Narain Singh

remarried with one Inder Singh. Pal Singh, son of

Narain Singh died in the year 1972 intestate. He

was not married and so had no children. Estate of

Pal Singh was mutated in favour of Gurmej Kaur, his

mother. Thereafter, Suit No. 220 of 2001

was filed by the appellant. The Trial Court

dismissed the suit holding that defendant No. 1,

Gurmej Kaur being the real mother of deceased Pal

Singh and she being Class I heir shall succeed to

Pal Singh after his death. The appeal was filed by

the appellant, which too was dismissed on

07.02.2006, against which second appeal was filed.

The High Court in its judgment reaffirmed the

decision of Court below. The High Court held that 3

although after death of Narain Singh, Gurmej Kaur,

on account of her re­marriage will loose right in

estate of Narain Singh but have every right to

inherit the estate of her son, Pal Singh in terms of

Section 8 of the Hindu Succession Act, 1956. The

plaintiff appellant aggrieved by the judgment of the

High Court have come up in this appeal.

3. Learned counsel for the appellant in support of

the appeal contends that after re­marriage, Gurmej

Kaur loses her right to inherit the property of

Narain Singh as well as his lineal descendants.

Hence she was not entitled to inherit the estate of

Pal Singh. It is submitted that Courts below did not

advert to The Hindu Widow's Re­Marriage Act, 1856,

which clearly dis­entitle the defendant No.1 to

inherit the estate of Pal Singh. It is submitted

that in the year 1972 when Pal Singh died, the Hindu

Window's Re­Marriage Act, 1856 was in force and

defendant No.1 was not entitled to inherit the

property of Narain Singh i.e. property of father of

the deceased but was entitled to inherit the estate 4

of Pal Singh.

4. Learned counsel for the respondent refuted the

submission of the counsel for the appellant and

contended that the provisions of the Hindu Widow's

Re­Marriage Act, 1856 are no longer applicable in

view of the overriding effect given to the Hindu

Succession Act, 1956 under Section 4 of the 1956

Act. He submits that the defendant No.1 being

natural mother of Pal Singh has rightly been held to

inherit his estate under the 1956 Act.

5. We have considered the submissions made by the

learned counsel for the parties and perused the

records.

6. The issue to be considered in the present

appeal is as to whether the Hindu Widow's

Re­Marriage Act, 1856 dis­entitles the defendant

No.1 to inherit the estate of Pal Singh. For

answering the aforesaid issue, we need to examine

the provisions of the Hindu Widow's Re­Marriage Act,

1856.

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7. The Hindu Widow's Re­Marriage Act, 1856 was

enacted to remove all legal obstacles to the

marriage of the Hindu Widows. The Act was enacted

to render re­marriage valid to legalize the

legitimacy of the children. It conferred a benefit

on those who could not marry but at the same time

imposes a restriction on them. Section 2 of the Act

on which reliance have been placed is as follows:­

“2 Rights of widow in deceased husband's property to cease on her re­marriage.­All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to re­marry, only a limited interest in such property, with no power of alienating the same, shall upon her re­marriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same.”

8. The Hindu Succession Act, 1956 was enacted to

amend and codify the law relating to intestate

succession among Hindus. Section 4 of the Act gave 6

the enactment an overriding effect. Section 4 is

quoted as below:­

“4. Overriding effect of Act.­ (1) Save as otherwise expressly provided in this Act,­

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.”

9. In the present case, we have to decide the

right of inheritance of the estate, which was left

by Pal Singh, who died in the year 1972. Pal Singh

died intestate and succession is to be governed by

Section 8 of the Hindu Succession Act, 1956, which

is as follows:­

“8. General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter— 7

(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.

10. The mother being Class I heir under Section 8

and there being no other class I heir available to

succeed mother, she naturally succeed the estate of

Pal Singh by virtue of Section 8 read with the

Schedule, Class I. Whether provision of Section 2 of

the 1856 Act dis­entitles the defendant No.1 to

succeed the estate of Pal Singh, is the submission

forcefully put up by learned counsel for the

appellant. It is submitted that on re­marriage, the

widow ceases to have any right of maintenance or

inheritance to her husband or his lineal successors. 8

It is submitted that Pal Singh being lineal

successor of husband of defendant No.1, she is also

dis­entitled to succeed the estate of Pal Singh.

11. The consequence of Section 2 on the right of

widow, who remarries has been clearly enumerated.

Section 2 provides that all rights and interests,

which any widow may have in her deceased husband's

property or to his lineal successors shall upon her

re­marriage cease and determine as if she had then

died. Thus, on re­marriage, the widow is divested

with any right which she may have in the husband's

property or property of husband's lineal successors.

In the present case, re­marriage took place in the

year 1952. Thus, the widow has lost any right in

the property of her husband or any lineal

descendants on re­marriage. Section 2 further

provides that on cessation and determination of

rights of widow, the next heirs of her deceased

husband or other persons entitled to the property

shall succeed the same. The effect of Section 2 was

thus confined to rights which the widow was 9

possessing at the time of re­marriage.

12. In the present case, the succession has opened

in the year 1972 when Pal Singh died. The question

which had cropped up in the present case regarding

succession of estate of Pal Singh and succession of

Pal Singh's estate shall be governed by Section 8 of

the Hindu Succession Act, 1956. By Section 8, the

mother i.e. defendant No.1 being described in Class

I of the Schedule shall inherit the property

excluding other heirs. Even after re­marriage of

defendant No.1, the defendant No.1 shall continue to

be the mother of Pal Singh, who was born to her from

her first husband Narain Singh. Succession under

Section 8 to the estate of Pal Singh by defendant

No.1 shall not be controlled or prohibited by

Section 2 of the Hindu Widow's Re­Marriage Act,

1856. It is true that all rights in her husband's

property or property of lineal successors of her

husband were lost by a widow on her re­marriage.

But Section 2 shall not govern or regulate any

future succession to which she may be entitled under 10

law. The Hindu Widow's Re­Marriage Act, 1856 has

been subsequently repealed by the Hindu Widow's

Re­Marriage (Repeal) Act. 1983. Even though, in the

year 1972, the 1856 Act was in force but as noted

above, the said provision shall not control the

succession as ordained by Section 8 of the 1956 Act.

13. Coming to Section 4 of the 1956 Act, where an

overriding effect has been given to the 1956 Act to

any other law in force immediately before the

commencement of the 1956 Act in so far as it is

inconsistent with any of the provisions contained in

the 1956 Act. Even for the arguments sake, it is

accepted that Section 2 of the 1856 Act have any

cascading effect on the right of widow, the same

shall be treated to have overridden by virtue of

Section 8 read with Schedule to the 1956 Act.

14. Learned counsel for the respondent has also

placed reliance on the judgment of this Court in

Smt. Kasturi Devi vs. Deputy Director of

Consolidation and others, (1976) 4 SCC 674, this

Court while considering the Hindu Succession Act, 11

1956 held that mother cannot be divested of her

interest in her son's property either on the ground

of unchastity or remarriage. One Madhua died in the

year 1960 whose wife was Kasturi. Kasturi remarried

with one Lekhraj in the year 1963. Karua who was son

of Madhua and Kasturi died in the year of 1970. The

question arose about the inheritance of property of

Karua. The claim of Kasturi, the appellant was

rejected by the High Court against which she has

filed the appeal. This Court has held that Kasturi

could not have been divested of her right to inherit

estate of her son. In paragraph 3 of the judgment

following was held:

“3. We may now examine the contentions raised by counsel for the appellant. Counsel submitted that assuming that Kasturi had remarried Lekhraj she had acquired an absolute interest in the property and no question of divestment of the property could arise in view of the provisions of the Hindu Succession Act. Secondly, it was argued that Kasturi in the instant case put forward her claim for inheritance not as widow of Madhua but as mother of Karua, because it was the property of Karua which was in dispute. In the 12

view that we take in the present appeal, it is not necessary at all to decide as to whether or not Kasturi would be disinherited or divested of the property even after having acquired an absolute interest under the Hindu law. This is a moot question and not free from difficulty. We will, however, assume for the sake of argument that as wife of Madhua Kasturi might be divested of her interest on her remarriage with Lekhraj. It is plain, however, in this case that the dispute arises over the property of Karua and qua Karua’s property, Kasturi claimed inheritance not as a widow of her husband Madhua but as the mother of Karua. The Deputy Director of Consolidation seemed to think that the bar of inheritance would apply to a mother as much as to a widow and on this ground he refused to accept the claim of the appellant. Learned counsel for the respondents supported the stand taken by the Deputy Director of Consolidation. We are, however, unable to agree with the view taken by the Deputy Director of Consolidation which appears to be contrary to the written text of the Hindu Law. Mulla in his Hindu Law, 14th Edn. while describing the incidents of a mother regarding inheritance under clause (iii) observed at p. 116 as follows:

“(iii) Unchastity and remarriage.— Unchastity of a mother is no bar to her succeeding as heir to her son, nor does remarriage constitute any such bar.” 13

A large number of authorities have been cited in support of this view. We find ourselves entirely in agreement with this view. Our attention has not been invited to any text of the Hindu Law under which a mother could be divested of her interest in the property either on the ground of unchastity or remarriage. We feel that the application of bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband. After the marriage, the wife becomes an absolute partner and an integral part of her husband and the principle on which she is excluded from inheritance on remarriage is that when she relinquishes her link with her husband even though he is dead and enters a new family, she is not entitled to retain the property inherited by her. The same, however, cannot be said of a mother. The mother is in an absolutely different position and that is why the Hindu Law did not provide that even the mother would be disinherited if she remarried.

15. We thus are of the view that Section 2 of the

1956 Act in no manner affect the right of defendant

No.1 to succeed the estate of her son Pal Singh and

after the death of Pal Singh, she was rightly held 14

to succeed the properties of Pal Singh. The suit

filed by the plaintiff has been correctly dismissed

by all the Courts below. We thus do not find any

merit in this appeal and the same is dismissed.

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI, ( ASHOK BHUSHAN ) SEPTEMBER 13, 2017.

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ITEM NO.1501 COURT NO.6 SECTION IV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s).11094/2017

ATMA SINGH Appellant(s)

VERSUS

GURMEJ KAUR (D) AND ORS. Respondent(s)

Date : 13-09-2017 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Surabhi Aggarwal, Adv.

Mr. Ambreesh Kumar Aggarwal, AOR

For Respondent(s) Mr. Pallav Mongia, Adv.

Mr. Pankaj Singh, Adv.

Mr. Jasmine Damkewala, AOR

Ms. Nidhi, AOR

Hon'ble Mr. Justice Ashok Bhushan pronounced the judgment of the Bench comprising Hon'ble Mr.Justice A.K. Sikri and His Lordship.

Appeal is dismissed in terms of signed Reportable judgment.

Pending applications, if any, stand disposed of.

(B.PARVATHI) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)