B.C. SINGH (D) BY LRS. versus J.M. UTARID (D) BY LRS.

Citation: [2018] 7 S.C.R. 747 · Decided: 08-05-2018 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2018] 7 S.C.R. 747
B.C. SINGH (D) BY LRS.
v.
J.M. UTARID (D) BY LRS.
(Civil Appeal No. 6935 of 2011)
MAY 08, 2018
[N. V. RAMANA  AND S. ABDUL NAZEER, JJ.]
Succession Act, 1925 – ss.24,25,26,33,35,47 and 48 –
Original plaintiff and his wife (both Christians) purchased an
immovable property – Both held equal share in the property – Wife
invited her relative  with his family to stay with them at their property
– Wife expired, without leaving any issue – After some time, dispute
arose between the plaintiff and his wife’s relative for possession –
Wife’s relative asserted share in the property through succession –
Thereafter, plaintiff and his wife’s relative both died and their legal
representatives were brought on record – Legal representatives of
plaintiff contended that neither relative of plaintiff’s wife nor his
children were the co-owners of the suit property and further even if
they were related to wife of plaintiff they could not succeed to her
share since sister of plaintiff’s wife was alive – Held: Plaintiff already
held half share in the property by virtue of the sale deed and on
death of his wife he succeeded half of the share in the property
held by his wife as provided u/s.33(b) r/w. s.35 of the Act – Thus, he
held 3/4th share in the entire property – Now, insofar as 1/4th share
was concerned, wife of plaintiff did not leave behind any lineal
descendant and left behind only her sister – Her sister was the only
near kindred and preferential heir of the intestate and she would
succeed to 1/4th share in the property – Legal representatives of
wife’s relative being a distant kindred would not be entitled to
succeed any share in the property since the intestate has left behind
her real sister.
Allowing the appeal, the Court
HELD: 1. An immovable property was jointly purchased by
the original plaintiff and his wife. Both of them held equal share
in the entire property.  Plaintiff’s wife invited a relative with his
family to stay with them. Wife of plaintiff expired, leaving no issue.
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SUPREME COURT REPORTS
[2018] 7 S.C.R.
After some time, plaintiff asked his wife’s relative to vacate the
property. However, wife’s relative asserted 1/4th  share in the
property as a distant kindred of plaintiff’s deceased wife. [Paras
1, 4 and 10][749-F-H; 750-C; 751-E-F]
2.  Plaintiff and his wife were Christians.  Therefore, Indian
Succession Act, 1925 would be applicable to the succession of
the property. Part V of the Act lays down the rules of succession
to a person dying intestate. However, this Part does not apply to
the property of any Hindu, Muhammedan, Buddhist, Sikh or Jaina
which is evident from Section 29 of the Act.  Chapter II of this
Part lays down the rules of succession in cases of intestates other
than Parsis.   Section 32 states that the property of an intestate
devolves upon wife or husband, or upon those who are of the
kindred of the deceased in the order and according to the rules
contained in the said Chapter.[Paras 9, 13][751-C-D; 752-F-G]
3.  In the instant case, the intestate (wife of plaintiff) has
left behind her husband and kindred.  There are no lineal
descendants as defined under Section 25.  Sections 42 to 48 lay
down the rules of distribution of property of an intestate where
the intestate had died without leaving children or remoter lineal
descendants and the rules of distribution are in the order of
priority. [Para 15][753-C-D]
4.   Plaintiff has already half share in the property by virtue
of the sale deed dated.   He being the husband would succeed
half of the share in the property held by his wife as provided
under Section 33(b) read with Section 35 of the Act.  Thus, he
holds 3/4th share in the entire property.  [Para 16][753-D-E]
5.  It is clear from s.47 that in case the intestate has not left
a lineal descendant, nor father, nor mother, the property shall be
divided equally between his brothers and sisters and the child or
children of such of them as may have died before him, such children
taking equal shares only the shares which their respective parents
would have taken if leaving at the intestate death.   In the instant
case, wife of plaintiff has left behind her sister.  She has not left
behind any lineal descendant. Her sister was the only near kindred
and preferential heir of the intestate and she would have
succeeded to 1/4th share in the property.  [Para 18][753-G-H;
754-A-B]
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6. The rules of distribution are in the ord

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