Arunachalathammal vs Ramachandran Pillai and Others

S. Ramachandra Iyer, C.J.—This second appeal concerns the succession to the estate of a Hindu unmarried female Chidambarathammal

who died issueless sometime in February, 1957. The question that falls for consideration in the appeal relates to the true construction of Sections 6,

9 and 11 of the Hindu Succession Act of 1956, which we shall refer to hereafter as the Act.

The facts giving rise to the appeal are these: One Shanmugha who together with his brother''s son, the first respondent to this appeal, constituted

a joint family, effected a partition with the latter. The partition arrangement is evidenced by a document dated 31st May 1940 under which

Shanmugha became entitled to the properties set out in the schedules 1 to 3, to the plaint in the present litigation. Shanmugha died about two years

afterwards leaving behind him his second wife and a minor daughter Chidambarathammal by her. At the time of his death he had in addition to the

aforesaid properties, those set out in schedules 4 and 5 to the plaint, which he had inherited from his predeceased first wife. His second wife

succeeded him but she survived him only for a period of about three years. On her death, the entire properties i.e. all those described in Schedules

1 to 5 were inherited by Chidambarathammal. By virtue of Section 14 of the Act, which came into force when she was alive, her title thereto

became absolute. She died shortly thereafter.

The first respondent claiming as her heir look possession of the entire properties. The appellant one among the several children of Shanmugha''s

sister, claimed on behalf of them all, a half share in the properties and instituted the suit for partition out of which this appeal arises. The suit was

resisted by the first respondent, who claimed a preferential right to Chidambarathammal''s properties. If that defence were to fail, he will have not

merely to part with half a share in favour of the sister''s children of Shanmugha, but share the other half along with his own brothers or sisters, if

any.

The rights between the contesting claimants have to be decided on the terms of Section 15, read with Section 9 of the Act. The Courts below

have taken different views, the trial Court upholding the claim of the appellant and the lower appellate Court holding that as between the first

respondent and the appellant, the former would exclude the latter.

Under Sections 15 and 16 of the Act, where a Hindu female dies leaving property which she had obtained from her father (as in the present

case) such property will, in the absence of her own issue devolve on the heirs of her father; the order and manner of succession thereto being

regulated as if the property belonged to him. In other words, the section creates a fiction for ascertaining the heirs of the female; it does not

however mean that the property reverts to the estate of her father and that succession is traced to his property.

It is now necessary to find out who Shanmugha''s heirs would have been on the date when Chidambarathammal died.

Succession to the estate of a male is pre scribed by Section 8 which says that in the absence of any of the preferential heirs set out in class I to

the schedule, those relations specified in class II will inherit, failing the agnates within a certain degree; and in the absence of agnates, cognates.

When Chidambarathammal died there were no heirs to Shanmugha under class I. There were however Shanmugha''s relations coming under Class

IT. It will be convenient at this stage to set out the list of heirs specified under class II as the argument in the case turns mainly on it.

Class II.

I. Father.

II. (1) Son''s daughter''s son; (2) Son''s daughter''s daughter; (3) Brothers; (4) sisters.

III. (T) daughter''s son''s son, (2) daughter''s son''s daughter, (3) daughter''s daughter''s son, (4) daughter''s daughter''s daughter.

IV. Brother''s son, (2) sister''s son, (3) Brother''s daughter (4) sister''s daughter.

V. Father''s father; father''s mother.

VI. Father''s widow, brother''s widow.

VII. Father''s brother, father''s sister.

VIII. Mother''s father; mother''s mother

IX. Mothers''s brother, mother''s sister. Explanation :

In this schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.

On the date of death of Chidambarathammal, there were no heirs of Shanmugha falling under the first three groups in class II. There were

however (1) the brother''s son, the first respondent, (2) first respondent''s two sisters. (3) six sons of his sister (4) two daughters of his sister, of

whom the appellant was one. We shall however refer hereafter only to the appellant and the first respondent as representing their respective

branches. All of them come under group IV. In that group, the appellant is given the first place. The question is whether he thereby excludes the

rest in the same group, that is those who are given a place subsequent to him or whether all of them simultaneously succeed.

Section 9 prescribes the order of succession among the heirs mentioned in the schedule. It says,

Those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the

second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession"".

If the word ""entry"" is taken to mean each one of the nine groups set out in class II, the section does not in so many words say that as among them

they take simultaneously, nor does it say that they take one after the other. The obscurity is enhanced by the use of arabic numerals with respect to

some of the members in the group (Groups II to IV) while in regard to others (groups V to IX) such numerals are not used.

It is contended on behalf of the first respondent that Section 9 prescribes a rule of preference inter se between the relations mentioned therein,

the earlier excluding the succeeding ones and that the brother''s son, who occupies the first place in group IV, will exclude the rest, e.g. the sister''s

daughter who is given a fourth place in that group. This argument will not avail in regard to the relations coming under groups V to IX, where no

numbers have at all been used; learned counsel concedes that in their case all the heirs mentioned in each one of the groups will take together.

With respect to class II heirs, the statute provides a preference to the heirs mentioned in one entry over the succeeding one. We have therefore

to ascertain the meaning of the term ""entry"". Does it mean only the group of heirs denoted by the Roman numeral? Or does it also mean the sub-

heads under that group, which in some instances are indicated by Arabic numerals ?

The word ""entry"" has not been defined in the Act. In its ordinary concept it means an item entered in a book, record, statute etc. a familiar

instance of the use of that word is in reference to the legislative limits appended to Schedule VII to the Constitution, that is, those that fall under the

respective legislative competence of the Union, State etc. The list contains several items; sometimes each item contains more than one subject. But

the courts in our country have referred to the main item only as an entry, although it contains more than one subject. The sub-items have never

been regarded as an entry.

This familiar use of the word will appear to indicate, that the word entry can only refer to the groups, i.e., those classified under the Roman

numeral and not to the several relations denoted by the Arabic numerals.

We have however, to see whether under the Act, the word ""entry"" has a different significance.

Section 11 deals with the distribution of the property of the deceased in a case where succession is to fall on relations coming under class II. It

says,

the property of an intestate shall be divided between the heirs specified in any one entry in class II of the schedule so that they share equally"".

This section would be wholly unnecessary if each one of the heirs mentioned in each group of class II were to take in preference to the next

one in the same group. It is contended that as there may be plurality of persons under the same category (e.g. there may be more than one

brother''s son) the section provides for an equal distribution among them. But such a case will be covered by Section 19. Therefore Section 11

must refer only to the entire group indicated by the Roman numeral. If so much is clear, the word entry can only refer to each one of the nine

groups denoted by the Roman numerals.

If the legislature intended that the relations distinguished by the Arabic numerals should constitute distinct entries, it would have employed the

Roman numerals for each one of them and there was really no need for the use of the Arabic ones.

But Mr. R. Gopalaswami Ayyangar contends that some significance must be attached to the use of the Arabic numerals, particularly when they

have not been used with reference to certain other groups; the numbers must therefore be held to be not intended for the mere purpose of

enumeration; they should therefore, be taken as prescribing a, priority of succession. In support of the contention learned counsel has referred to

what he called the underlying scheme of succession prescribed by the Act, of the superiority of the agnate over cognate (vide Section 8(c)). It is

contended that cognatic relations have been designedly put in after the agnates in each group so that the latter may have a priority in the matter of

succession.

There can be little doubt that Arabia numerals employed to distinguish between the relations set out in each group, the groups, themselves

being indicated by Roman figures, are as much part of the statute as the Roman numerals. Numbers are generally employed in a statute for the

purpose of easy reference. If any other significance is to attach to them one should search the substantive part of the enactment to see whether the

numerals have any special purpose. There is no reference in the Act to any number, Roman or Arabic. Sections 9 and 11 speak only of an entry.

Therefore, the use of numerals for indication of particular relations cannot import anything; nor the absence of such numeric in groups V to IX give

them any significance beyond showing an indifference on the part of the draftsman.

It is then said that if the legislature had intended all those mentioned in Entry IV to take together it would have collectively referred to them as

children of the brother and sister, instead of individually referring to them. But this argument ignores that under the law of succession it is the

practice to enumerate separately different relations, even though they inherit simultaneously. Nor can we argue that there is any superiority of

agnates over cognates under Class II. For example, agnates like father''s father and father''s brother are postponed to certain cognatic relations like

son''s daughter''s daughter, sister''s daughter etc. The preference of agnates over cognates is only in the contingency of there being 110 heirs under

class I and class II. But the Act does manifest a distinct principle which underlies the scheme of distribution prescribed by it. It is two-fold viz., (1)

Nearness of relationship and presumed natural affection of the deceased. (2) There should be no distinction between persons standing in the same

degree of relationship merely by reason of sex or by any principle of superiority of one born through a male to one born through a female.

Generally speaking, the heirs in Class II have been arranged in group in accordance with that scheme. Applying these two tests we find that the

various groups are classified under one or both the principles. Taking group IV, the relations are of the same degree to the deceased and normally

his affection to them would have been the same; there is therefore no reason why a brother''s son should supersede a sister''s son. The intendment

of the Act must be taken to be in favour of the view, that the heirs in each group under Class II take simultaneously. In other words, the word entry

in Sections 9 and 11 can refer only to all that goes under a Roman numeral and not one that is denoted by the Arabic one. The groups of heirs

specified in the various entries under Class II will therefore simultaneously succeed, excluding only those in the succeeding entry or entries.

Mr. Gopalaswami Aiyangar then made an attempt to salvage for the first respondent at least the properties set out in Schedules 1 to 3 to the

plaint (i.e., those that Shanmugha obtained under a partition in his family) as a new ground. The contention was that as these properties were in

origin ancestral, they should be regarded as the interest of Shanmugha in a Mitakshara coparcenary property within the meaning of Section 6 of the

Act and that they would devolve exclusively on the first respondent, his former coparcener. This somewhat surprising argument, namely, that the

separate property of a divided member of a Hindu joint family would still be governed by the principle of survivorship was sought to be supported

by certain observations of Varadachariar, J., in AIR 1945 25 (Federal Court) . We shall examine the contention after dispelling the erroneous

assumption on which the entire argument is based.

It must be remembered that the entire properties which form the subject matter of this litigation were the absolute properties of

Chidambarathammal, to whom alone succession has to be traced. Inheritance to a female will be governed by Sections 15 and 16 of the Act,

which enact certain rules relating thereto and prescribe the order in which the heirs would become entitled to the property. Succession to a

childless female, who died leaving properties obtained from her own father would be governed by the same rules as if the property had been her

father''s. Thus, as we pointed out earlier, the statute creates a fiction for ascertaining her heir by treating it as her father''s property; but that cannot

make the property her father''s; so to treat it, will amount to an unwarranted extension of the fiction. The property being that of the female, no

question of any coparcenary can at all arise. Section 6 can not therefore apply to the present case at all.

But we shall however show that there is no substance in the argument even if one were to treat the property as Shanmugha''s. It is our view

that Section 6 cannot apply to the separate property of a Hindu who obtained the same on partition from his coparceners; on the other hand,

succession to it will be governed by Section 8 of the Act. In AIR 1945 25 (Federal Court) the Federal Court was considering a claim to a share

made by the widow of a predeceased son of a sole surviving coparcener in the estate of her father-in-law. She claimed to be entitled to a share by

virtue of the proviso to Section 3(1) of the Hindu Women''s Rights to Property Act of 1937, which dealt with succession to the separate property

of a Hindu male. It was held that the term ""separate property"" in that section only meant self acquired property and that property held by a sole

surviving coparcener would be outside that section. Varadachariar, J., pointed out that three different senses in which the term ""separate property

was understood, sometimes as denoting purely self-acquired property sometimes as joint family property obtained on partition or joint family

property held by a sole surviving coparcener, and held that the particular sense in which the term was used in the enactment has to be determined

by referring to the scheme of the statute in which those words occurred.

Recently a Bench of this Court in A.N. Subramanian late minor by G.S. Lakshmi Ammal Vs. A.S. Kalyanarama Iyer and Others, had to

consider whether property obtained by a Hindu on partition could be regarded as an interest in the joint family property, within the meaning of

Section 3 (2) of the Hindu Women''s Rights to Property Act of 1937 and that question was answered in the affirmative. The material words of that

section ""having at the time of his death an interest in a Hindu joint family property"" are almost identical to those occurring in Section 6 of the present

Act. Prima facie those words can only refer to a case where the person dies undivided with respect to the property; for a property which a

coparcener obtains on partition can hardly be regarded as constituting an interest in a joint family property, the joint family itself having been

extinguished, unless, it be that the coparceners obtaining the property has sons of his own with whom there would be another joint family.

But the learned Judges held that even in a case where there was no son, the property would still be coparcenary property. This is clear from

the following passage in the judgment of Rajamannar, C. J.: -

Likewise, it should be held that the property which a coparcener obtains at a partition is joint family property, though the coparcener may after the

partition have absolute powers of alienation so long of course there is no son born to him after the partition who would, on birth, be entitled to a

share in such property.

It is not necessary for the purpose of this case to examine all the reasons which persuaded the Court to arrive at that conclusion, as we are

satisfied that the decision in that case depended on the view that Section 3 (1) would not apply to separate property other than self acquired

property. This is clear from this passage in the judgment, namely :

If the property which a coparcener obtains at a family partition is not separate property within the meaning of Section 3 (1) of the Act, it ''must be

deemed'' to be an interest in the Hindu joint family property within the meaning of sub-section (2) of Section 3"" (Italics (here into '' '') ours)

To hold otherwise in that case would have meant that there is a lacuna in that enactment, which made provision for widows of individuals who left

property obtained by them at partition in their family.

Thus it will be seen that the view taken in A.N. Subramanian late minor by G.S. Lakshmi Ammal Vs. A.S. Kalyanarama Iyer and Others, was

occasioned by reason of the peculiar wording of Section 3 of the Hindu Women''s Rights to Property Act of 1937. They cannot be taken as

affording a guidance generally to the interpretation of the corresponding words of Section 6 of the present Act. In AIR 1945 25 (Federal Court)

Varadachariar, J., recognised that the words ""separate property"" might be the antithesis of ""ancestral property, coparcenary property, or joint

family property"" and proceeded to ascertain which of the meanings was appropriate to the interpretation of Section 3(1) by ascertaining the intent

and purpose of the statute in question. The learned Judges held that the Hindu Women''s Rights to Property Act of 1937, not being a ""codifying

Act"" or even a general amendment of the Hindu Law of Inheritance, but intended purely to remedy a particular deficiency under the existing law,

there was no need to give a larger interpretation to the words ""separate property"" than the circumstances surrounding the legislation warranted.

Under the then existing law the widow could not inherit where her husband had left sons. By their presence there would be no separate property

except the self acquired one. Section 3(1) was therefore held to apply to that kind of property alone, as other kinds of property would, in the

presence of sons, be joint family property; Section 3(2) provided for it. There was no need to provide for a case where a man died son-less, as

the widow could inherit under the ordinary law every kind of separate property, enactment in that case being only supplementary to the general law

of inheritance.

But these principles cannot and do not apply in the interpretation of Section 6 of the present Act. This is a Code which lays down a

comprehensive rule of succession based on principles of justice and also on the basis of natural love and affection of the deceased. Section 8 deals

with the property of a male Hindu who dies. The term ""property"" though not defined under the Act, is a word of wide import including prima facie

every kind of property over which he has a right of disposal. Section 8, it will be seen, does not use the words like separate or self acquired

property. Even in regard to joint family property, Section 30 confers a power on a member to dispose of his interest by means of a will.

Section 6 states :

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his

interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act :

Provided that, if the deceased had left him surviving a female relative specified in class I of the schedule or a male relative specified in that class

who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or

intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I: For the purpose of the section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that

would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was-entitled

to claim partition or not.

Explanation II: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the

coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share ia the interest referred to therein"".

In our opinion, Section 6 can be regarded only as an exception to the general rule of succession prescribed by Section 8. Even to that

exception there is a proviso which enables succession to the interest of the deceased member of a joint family in favour of his wife''s daughter etc.

The cardinal rule of interpretation is that words in an Act are prima facie used in their correct sense and not in any loose form. The term

interests in joint family property"" has a definite significance in law, namely, that the person concerned is undivided. Prima facie these words in

Section 6 have to be understood in that sense. It is true that where a legislature uses in any enactment a legal term which has received a judicial

interpretation, it must be assumed that such term, unless a contrary intention appears, has been used in any subsequent enactment in the sense in

which it has been judicially interpreted: Vide Jay v. Johnstonex, 1893-1-Q. B. 25 at 28. This rule cannot obviously apply to a case where the

words used in a distinctive sense in a previous statute, should be attributed the same meaning in any subsequent statute, whose object and terms

indicate that the legislature did not intend to use the words in the restricted sense attributed to it by courts with reference to special legislation.

Judged in the light of the context and the limited extent to which the statute preserves the rule of survivorship, it must be taken that Section 8 is

intended to apply to all kinds of separate property possessed by a Hindu, whether it be self acquired or not obtained on partition from his family

when he has no sons himself. Section 6 being in the nature of an exception, should be strictly construed and will only apply to a case where a

member thereof dies undivided and without leaving any female heirs mentioned in class I. We are therefore of opinion that Section 6 will not apply

to property held by a person as a sole surviving coparcener or to a separate property obtained at a partition in the family, when that person has left

no undivided sons of his own.

In the present case the properties in schedules 1 to 3 were the separate properties of Shanmugha, though in regard to schedules 2 and 3 it was

only a half undivided share. Schedules 4 and 5 were properties which he obtained from outside the family. None of them can be regarded as an

interest in joint family property. The appeal therefore succeeds and is allowed with costs.