LexSATYA CHARAN DUTTA versus URMILLA SUNDARI DASSI & ORS.
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294 SATYA CHARAN DUTTA A v. URMILLA SUNDARI DASSI & ORS. E::ptember 9, 1969 [J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] B Hi11d11 S11ccessi01> Act (30 of 1956), ss. 8, 9, 11,. 15 and 16:- Hindu widow dying intestate-Husband's brothers and a sister on~y heirs -Property, that of llusba1ul-If brolhers take in preference to .nsler or all take eaual/y. Under ss. 15 and 16 of the Hindu Succession Act, 1956, which deal with tules regarding ~ucccssion to the property of a fcn1ale Hindu, where the properly is that of her husband, the heirs would be those set out in s. 8. Under s. 8, there arc two classes of heirs mentioned in the Schedule to the Act. Jn Class 11 there are lX entries and only in entries •II, Ill and IV the heirs arc mentioned as against arabic numerals. 'Brother' aoJ 'sister' arc mentioned us items (3) aml ( 4) in entry-II of Class II. Section 9 lays down that among the heirs specified in the Schedule those in Class l shall take simultaneously and to the exclusion of all other heirs and thooe. in the ell/ry-l in Ciaos 11 ohull be preferred to those in elllry·ff and 50 on. A Hindu ·widow, in possession of her <lcccasc<l husband's properties, died in 1964. She left no lineal descendants, but her huoband had three brothers and a sister surviving. On the, question whether the three brothers were entitled to succeed to the property in preference to the sister, on the. ground that "brother' is mentioned as itcn1 (3) of cntry.JJ of Class II, whereas 'sister' is nlcntioncd as iten1 (4), HELD : lf the intention \\-'as to give preference an1ong ·the heirs in Class II accon.ling to arabic nun1crals treating such numerical iten1 as a separate entry, some provision to that effect would have been made in s. 11. Section 11 states that the property of an intestate shall be divided among the heirs specified in any one t•11try in Class II so that they share equally, and the language in ss. 9 and 11 is not consistent \\·ith the view that arabic nun1erals constitute entries within the meaning of s. 11. Further, the scheme _of the Act is that male and female heirs should get equal treatment, und, in Class I, nu1le and fcn1ale heirs have been treated as equal. There is no reason why any distinction ihould have been made among the heirs in Class Jl on the ground of sex. Therefore, it is not possible, in the absence: of any indication in the sections or in the Schedule itself. to attribute such a radical departure fron1 the genera\ scheme of classification that, in case oi three entries only in Class 11, (entries II, 111 and IV), the Legislature intended to create an order of preference and lay do\vn the san1e by the use of arubic numerals, [299 C- D, H; 300 1!-H] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1356 of 1956. Appeal from the jud~ment and de.:ree dated De.:ember 3, 1965 of the Calcutta High Court in Appeal from Original Decree No. 85 of 1965. c D F F G 11 s. c. DUTTA v. u. s. DASS! (Grover. 1.) 295 A D. N. Mukherjee, for the appellant. B c D E F G II M. C. Bhandare, f>ratap Singh and K. Rajendm Clwudlzuri, for respondent No. l. The· Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Calcutta High Court. The facts may be brielly stated. One Ratanamala Dassi who was governed by the Bengal School of Hindu Law as modi- lied by the Hindu Succ;ession Act 1956, hereinafter called . the Act, died intestate in January 1964 leaving no i;sue or lmeal descendants. Her husband Monmotha Nath Dutt had pre- deceased her. The said Ratnamala Dassi le-ft her surviving the appellant and respondents 2 and 3, the brothers of her husband and respondent I, Urmilla Sundari Dassi her husband's sister. In 1964 respondent No. I instituted a suit for a declaration that as an heiress of Ratnamala Dassi she had ± 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 appear- ance and took up the plea i11 his written statement that under the Act he and respondents 2 and 3 being the brothers of the hus- band of the deceased Ratnamala Dassi were the heirs in prcfc· rcnce to respondent l who was the sister of the deceased's hus- band. 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 respon
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