LexSHAM LAL & ORS. ETC. versus AMAR NATH & ORS.
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- - A B c D E 48!> SHAM LAL & ORS. ETC. v. AMAR NATH & ORS. September 17, 1969 [V. BHARGAVA AND K. S. HEGDE, JJ.] Hindu Law-Stridhana-Hindu widow leaving property not shulka-· Mar;lage in approved form~rder of succession to property. The rules relating to succession to Stridhana, other than shulka, of a Hindi.I woman who was married in an approvl.'d form of marriage are· stated in Yajnyawalkya's text as : 'her kinsmen take it, if she die without issue·. The order of succession was elaborated in the Mitakshara, which· was translated by Colebrooke as : (i) unmarried daughter, (ii) married' daughter who is unprovided for, (iii) married daughter who is provided for, (iv) daughter's daughter, (v) daughter's son, ~vi) son, (vii) son's son,. and (viii) lf there be none of these the stridhana then !JOOS to her hlli-- band, and if he is dead, to the husband's heirs. In the present case, a Hindu widow, who was married in an approved form of marriage died leaving stridhana which was not .'\hufka. She did not leave behilid any of the heirs mentioned in items (i) to (vii) but there was a pre-deceased son's daughtett. On the question of preference· between the son's daughters and her husband's brother''s son (who was; the husband's nearest heir). ' HELD : (i) Colebrooke's translation has been accepted by the Judicial Committee and Hindu scholars as bringing out correctly the m""'1ing of the relevant passages in the Mitakshara, and it is now weU .. ettled that the F stridhana of a Hindu woman governed by Mitakshara passes in the order mentioned in the. Mitakshara, [496 H; 497 A-Cl G H Blmacharya Bin Venkappacharya v. Ramcharya Bin Bhinracharya,. I.LR.' '.33 Born. 452, referred to. (2) The contention that the expression 'without issue' in Yajnywalkya was elaborated as 'lea\ing no progeny' by the Mitakshara, and that there- fore the heirs (i) to (vii) should be understood as only illustrations of the expression 'progeny' and hence, son's daughters are not excluded from the expression 'progeny', is opposeJ to the commenta·ries of Narada, Gautama and other commentators, and to the decisions of the Judicial Commitlee and the High Courts rendered for over a century. [497 E-H) (3) In the matter of succession to stridhana propinquity is neither the scile nor a principal test as shown by the fact that daughter's daughter and daughter's son succeed in preference to the son. [498 B-C] 490 SUPREME COURT REPORTS [1970) 2 S.C.R ( 4) The rule of interpretation that the masculine includes the feminine and therefore 'son's son• includes 'son's daughter', is inapplicable, be· cause, 'daughter"s daughter' is shown taking prec~dence over 'daughter's son'. [489 EJ (5) The Hindu Women's Rights to Property Act, 1937, applies to the separate property left by a Hindu male and not to the property of a Hindu female. [500' C-D] ~Kuniar Raghava Sure1ulra Salli v. Babui La1.-'hn1i Kuer, (1939) 1. L.R. 18 Pat. 590 and Baj Kesserbai v. H1111s Raj Morarji & A11r. L.R. 33 I.A. 176, distinguished. A1111ago11da Nathgouda Patil v. Co11rt of Wards, [1952] S.C.R. 208. A B ~~~. c CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1954 :ind 1955 oi 1966. Appeals from the judgment aind decree dated May 30, J 963 of the Punjab High Court in Regular First Appeal No. 105 of 1957. A. K. Sen and R. K. Aggarwal, for the appellant (in C. A. No. 1954 of 1966) and respondents Nos. 5, 6, 8 and 9 (in C.A. No. 1955 of 1966). Bishan Narain, B. P. Maheshwari and R. K. Gupta, for the E .appellants (\n C.A. No. 1955 of 1966) and respondents Nos. 2 to ·6 (in C.A. No. 1954 of 1966). Sarjoo Prasad, Rameshwar Prasad and A. D. Mathur, for respondent No. 1 (in both the appecls). S. M. Jain, for respondents Nos. 13(i) to 13(iv) (in C.A. No. 1954 oi 1966) and respondents Nos. 12(i) to 12(iv) (in C.A. No. 1955 of 1966). · Hegde, J. The question of law that arises for decision in these appeals by certificate is whether the daughters of a pre-deceased son of a Hindu Woman are entitled to succeed to her stridhana ? The trial court answered the question in the affirmative but the High Court i;n appeal came to the conclusion that they are not ·entitled to succeed to the estate in question. F G The material facts of this case are few. For a proper under- H standing of the facts of the case, it will be convenient to have before us the admitted pedigree of the family. It is as folfows : - . 1 TwJRam
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