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hindu succession act

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Hindu Succession Act, 1956-ss. 4, 8 and 19-Property of father who dies intestate-Whether devolves on son, who separated by partition from his father, in individual capacity or Karta of his HUF. Wealth Tax Act, 1957-ss. 3 and 4-Property inherited under s 8 Hindu Succession Act, 1956-Whether HUF or individual property. Income Tax Act, 1961/Income Tax Act, 1922-Income from as sets inherited by son from father-Whether assessable as individual income. HEADNOTE: Rangi Lal and his son Chander Sen constituted a Hindu undivided family. They had some immovable property and the family business. By a partial partition the HUF business was divided between the two and thereafter it was carried on by a partnership consisting of the two. The house property of the family continued to remain joint. The firm was assessed to income-tax as a registered firm and the two partners were separately assessed in respect of their share of income. The mother and wife of Rangi Lal having pre-deceased him, when he died he left behind him his only son Chander Sen and his grandsons. On his death there was a credit balance of Rs.1,85,043 in his account in the books of the firm. In the wealth tax assessment for the assessment year 1966-67, Chander Sen, who constituted a joint family with his own sons, filed a return of his net-wealth by including the property of the family which u on the death of Rangi Lal passed on to him by survivorship and, also the assets of the business which devolved upon him on the death of his father. The sum of R.S.. l ,85,0 13 standing to the credit of Rangi Lal was, however, not included in the net-wealth of the assessee-family. Similarly, in the wealth tax assessment for the assessment year 1967-68 a sum of Rs.1,82,742 was not included, in the net wealth of the assessee family. It was contended that these amounts devolved on Chander Sen 255 in his individual capacity and were not the property of the assessee family. The Wealth-tax officer did not accept this contention and held that these sums also belonged to the assessee-family. A sum of Rs.23,330 was also credited to the account of late Rangi Lal on account of interest accruing on his credit balance. In the proceedings under the Income Tax Act for the assessment year 1367-68 this sum was claimed as deduction on the same ground. The Income-tax officer disallowed the claim on the ground that it was a payment made by Chander Sen to himself. On appeal, the Appellate Assistant Commissioner of Income-tax accepted the assessee’s claim in full and held that the capital in the name of Rangi Lal devolved on Chander Sen in his individual capacity and as such was not to be included in the wealth of the assessee family. The sum of Rs.23,330 on account of interest was also directed to be allowed as deduction. The Income-tax Appellate Tribunal dismissed the appeals filed by the Revenue and its orders were affirmed by the High Court. On the question: “Whether the income or asset which a son inherits from his father when separated by partition should be assessed as income of the Hindu Undivided Family consisting of his own branch including his sons or his individual income”, dismissing the appeals and Special Leave Petition of the Revenue, the Court, ^ HELD: 1. The sums standing to the credit of Rangi Lal belong to Chander Sen in his individual capacity and not the Joint Hindu Family. The interest of Rs.23,330 was an allowable deduction in respect of the income of the family from the business. [268C-D] 2.1 Under s. 8 of the Hindu Succession Act, 1956, the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family. Section 8 lays down the scheme of succession to the property of a Hindu dying intestate. The Schedule classified the heirs on whom such property should devolve. Those specified in class I took simultaneously to the exclusion of all other heirs. A son’s son was not mentioned as an heir under class I of the Schedule, and, therefore, he could not get any right in the property of his grandfather under the provision. [265F-G] 256 2.2 The right of a son’s son in his grandfather’s property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property “ceased to have effect”. So construed, s. 8 of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1356, did not constitute HUF property consisting of his own branch including his sons. [265G-H; 266A-C] 2.3 The Preamble to the Act states that it was an Act to amend and codify the law relating to intestate succession among Hindus. Therefore, it is not possible when the Schedule indicates heirs in class I and only includes son and does not include son’s son but does include son of a predeceased-son, to say that when son inherits the property in the situation contemplated by s. 8, he takes it as Karta of his own undivided family. [267C-D] 2.4 The Act makes it clear by s. 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today that the property which devolved on a Hindu under s. X of the Act would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis sons and female heirs with respect to whom no such concept could be applied or contemplated. [267E-G] 2.5 Under the Hindu law, the property of a male Hindu devolved on his death on his sons and the grandsons as the grandsons also have an interest in the property. However, by reason of s. 8 of the Act, the son’s son gets excluded and the son alone inherits the properly to the exclusion of his son. As the effect of s. 8 was directly derogatory of the law established according to Hindu law, the statutory provisions must prevail in view of the unequivocal intention in the statute itself, expressed in s. 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu Law. [264G-H; 265A-B] 2.6 The intention to depart from the pre-existing Hindu law was again made clear by s. 19 of the Hindu Succession Act which stated that 257 if two or more heirs succeed together to the property of an intestate, they should take the property as tenants-in- common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father’s property took a joint tenants and not tenants-in-common. The Act, however, has chosen to provide expressly that they should take as tenants-in-common. Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under s. 8 constituted the absolute properties and his sons have no right by birth in such properties. [266F-H] Commissioner of Income-tax, U. P. v. Ram Rakshpal, Ashok Kumar, 67 I.T.R. 164; Additional Commissioner of Income-tax, Madras v. P.L. Karuppan Chettiar, 114 I.T.R. 523; Shrivallabhdas Modani v. Commissioner of Income-Tax, M.P-I., 138 I.T.R. 673 and Commissioner of Wealth-Tax A.P. II v. Mukundgirji 144 I.T.R. 18, approved. Commissioner of Income-tax, Gujarat-l v. Dr. Babubhai Mansukhbai (Deceased), 108 I.T.R. 417, overruled.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=8997 PETITIONER: COMMISSIONER OF WEALTH TAX. KANPUR ETC. ETC. Vs. RESPONDENT: CHANDER SEN ETC. DATE OF JUDGMENT16/07/1986 BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) PATHAK, R.S. CITATION: 1986 AIR 1753 1986 SCR (3) 254 1986 SCC (3) 567 1986 SCALE (2)75 CITATOR INFO : F 1987 SC 558 (10) RF 1991 SC1654 (27) … Continue reading

HINDU SUCCESSION ACT – Section 23 – Special provision relating to dwelling houses – Omission of by Hindu Succession (Amendment) Act, 2005 – Effect of – Constitution of India, Article 136. Will – Proof of – Concurrent finding that it was validly proved – No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute – But the same would not prevail over a clear and unambiguous provision. In this appeal, the question involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses.= Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, this Court fails to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] `174th Report of the Law Commission’, referred to. 2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23] [1020-F- G] 2.2. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. [Para 24] [1021-A-B] 3. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, could have been applied provided it takes away somebody’s vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] [1021-C-D] Eramma v. Verrupanna AND OTHERS (1966) 2 SCR 626; The State of Orissa v. Bhupendra Kumar Bose AND OTHERS AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India AND ANOTHER (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni AND OTHERS AIR 1960 SC 794; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry AIR 1961 SC 29; State of Punjab AND OTHERS v. Bhajan Kaur AND OTHERS 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma AND ANOTHER (2004) 4 SCC 1; Subodh S. Salaskar v. Jayprakash M. Shah AND ANOTHER 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector AND Etio AND OTHERS (2007) 5 SCC 447; Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 and M/s Kesho Ram AND Co. AND OTHERS etc. v. Union of India AND OTHERS (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. AND ANOTHER v. Union of India AND OTHERS (2000) 2 SCC 536, referred to. 4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031-A] 4.2. A right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible. [Para 28] [1033-C-D] 4.3. In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime. [Para 29] [1033-F] Sheela Devi AND OTHERS v. Lal Chand AND ANOTHER (2006) 8 SCC 581, held inapplicable. Shyam Sunder AND OTHERS v. Ram Kumar AND ANOTHER (2001) 8 SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and Others (1996) 3 SCC 644 and Anuj Garg AND OTHERS v. Hotel Association of India AND OTHERS AIR 2008 SC 663, referred to. Bhe AND OTHERS v. The Magistrate, Khayelisha AND OTHERS (2004) 18 BHRC 52 (South African Constitutional Court), referred to. 5. It is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition. [Para 29] [1034-E-F] 6. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. There is no reason to differ therewith. [Para 31] [1037-C-D] Case Law Reference: (1966) 2 SCR 626 held inapplicable Para 22 AIR 1962 SC 945 held inapplicable Para 25 (2006) 2 SCC 740 held inapplicable Para 25 AIR 1960 SC 794 held inapplicable Para 25 AIR 1961 SC 29 held inapplicable Para 25 2008 (8) SCALE 475 held inapplicable Para 25 (2000) 2 SCC 536 referred to Para 25 (2004) 4 SCC 1 held inapplicable Para 26 2008 (11) SCALE 42 held inapplicable Para 26 (2007) 5 SCC 447 held inapplicable Para 26 (1988) 4 SCC 284 held inapplicable Para 26 (1989) 3 SCC 151 held inapplicable Para 26 (2006) 8 SCC 581 held inapplicable Para 26 (2001) 8 SCC 24 referred to Para 26 (1996) 3 SCC 644 referred to Para 27 (2004) 18 BHRC 52 referred to Para 29 AIR 2008 SC 663 referred to Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 2009. From the Judgment AND Order dated 29.01.2007 of the High Court of Judicature at Madras in O.S.A. Nos.196 and 197 of 2001. K.V. Viswanathan, P.B. Suresh and Vipin Nair (for Temple Law Firm) for the Appellant. K. Kamamoorthy, B.P. Balaji, N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2535 OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007] G. Sekar …Appellant Versus Geetha & Ors. …Respondents J U D G M E N T S.B. SINHA, J : 1. Leave granted. 2. Effect of the amendment in the … Continue reading

Even though the mother is shown as nominee, widowed wife is also equally entitled to a share in the insurances and death benefits of deceased son= the 1st respondent and the appellant, being the wife and the mother of the deceased respectively, come within the meaning of Class I heirs as per Section 8 of the Hindu Succession Act, and therefore, the 1st respondent along with the appellant is entitled to a share in the amounts shown in the petition schedule as also the amount claimed by the appellant as counter-claim and also the death benefits payable by the employer of the deceased. =nomination does not confer any beneficial interest on the nominee and the amounts so received by the nominee are to be distributed according to Hindu Succession Act, 1956.

THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE B. CHANDRA KUMAR     Civil Miscellaneous Appeal No.941 of 2010     JUDGMENT:   (Per Hon’ble Sri Justice N.V. Ramana)             This civil miscellaneous appeal is directed against the order dated 30.08.2010 passed in O.P. No. 1634 of 2007 by the learned IV Additional District … Continue reading

Constitution of India-Articles 13, 14, 15 and 32-Scope of-Power of the Court-Legislative policy relating to personal laws-Interference by courts- Extent of-Personal Laws. Three writ petitions were filed by different organisations under Article 32 of the Constitution of India as public interest litigation. The Ahmedabad Women Action Group prayed for the following reliefs in its writ petition :- (a) to declare Muslim Personal Law which allows polygamy as void offending Articles 14 and 15 of the Constitution; (b) to describe Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14 and 15 of the Constitution. (c) to declare that the mere fact that a Muslim husband takes more than one wife is an act of cruelty within the meaning of Clause YIII (f) of Section 2 of Dissolution of Muslim Marriage Act, 1939. (d) to declare that Muslim Women (Protection of Rights on Divorce) Act, 1986 is void infringing Articles 14 and 15. (e) to further declare that the provisions of Sunni and Shia laws of inheritance which discriminate against females in their share as compared to the share of males of the same status, void as discriminating against females only on the ground of sex. In the writ petition filed by Lok Sewak Sangh, the following reliefs were prayed for- (a) to declare Sections 2(2), 5(ii) & (iii), 6 and Explanation to Section 30 of Hindu Succession Act, 1956, as void offending Articles 14 and 15 read with Article 13 of the Constitution of India; (b) to declare Section (2) of Hindu Marriage Act, 1955, as void offending Articles 14 and 15 of the Constitution of India; (c) to declare Sections 3(2), 6 and 9 of Hindu Minority and Guardianship Act read with Sections 6 of Guardians and Wards Act as void; (d) to declare the unfettered and absolute discretion allowed to a Hindu spouse to make testamentary disposition without providing for an ascertained share of his or her spouse and dependent, void. Similarly in their writ petition, the Young Women Christian Association sought for a declaration that Section 10 and 34 of Indian Divorce Act and Sections 43 to 48 of Indian Succession Act are void. =Dismissing the writ petitions, this Court HELD : 1.1. The Legislature is responsible for the welfare of the State and it is for them to lay down the policy that the State should pursue. Therefore, it is for them to determine what legislation to put up on the statute book in order to advance the welfare of the State. The Courts are not concerned with the proprietory of their views or their wisdom. [395-F] 1.2. The Courts can at best advise and focus attention on the State policy on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For, in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, breaks to its self-motion, described in judicial parlance as self-restraint. Maharshi Avadhesh v. Union of India, [1994] Supp. 1 SCC 715; Reynold Rajamani & Anr. v. Union of India & Anr., [1982] 2 SCC 474; Pannalal Bansilal & Ors. v. State of A.P. & Anr., [1996] 2 SCC 498 and Madhu Kishwar & Ors. v. State of Bihar & Ors., [1996] 5 SCC 125, relied on. 2. The Constitution of India itself recognises the existence of per-sonal laws in terms when it deals with the topic falling under personal law in item 5 in the Concurrent List-List III. Yet the framers of the Constitution did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and so they did not intend to include these personal laws within the definition of the expression laws in force.” Therefore, the personal laws do not fall within Article 13(f) at all. [399-D-G] Slate of Bombay v. Narasu Appa Mali, AIR (1952) Bom. 84, cited. Krishna Singh v. Mathura Ahir & Ors., AIR (1980) SC 707, relied on. Sarla Mudgal & Ors. v. Union of India & Ors. [1995] 3 SCC 635, distinguished. 3. There is no substance in the challenge by the petitioner to the vires of the provisions of Section 10 of the Indian Divorce Act as being discriminatory, and therefore, violative of Article 14 of the Constitution. [404-E] Anil Kumar Mahsi v. Union of India & Anr. [1994] 5 SCC 704, followed. 4. So far as the challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 is concerned, the said issue is pending before a Constitution Bench of this Court. Therefore, there is no reason to multiply proceedings in that behalf. [404-F] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 494 of 1996 Etc. =1997 AIR 3614, 1997( 2 )SCR 389, 1997( 3 )SCC 573, 1997( 2 )SCALE381 , 1997( 3 )JT 171

PETITIONER: AHMEDABAD WOMEN ACTION GROUP (AWAG) & ORS. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 24/02/1997 BENCH: CJI, SUJATA V. MANOHAR, K. VENKATASWAMIW I T HWRIT PETITION (CIVIL) NO. 196 OF 1996LOK SEVAK SANGH & ORS.V.UNION OF INDIAW I T HWRIT PETITION (CIVIL) NO. 721 OF 1996YOUNG WOMAN CHRISTIAN ASSOCIATION (YWCA) & ORS.V.UNION OF … Continue reading

Hindu Succession Act 1956-Section 14(1)-Rights of a Female Hindu-‘ Maintenance’-Meaning of-Whether or not the maintenance given to a female Hindu would necessarily encompass a provision for her residence. Specific property allotted to a widow, of a co-parcener in a Hindu joint family, in lieu of her claim for maintenance-Whether said allotment is by virtue of a pre-existing right-Can such claim be equated with a right of ownership. Section 14 of the Hindu Succession Act-Scope of. Object of legislature-To wipe out the disabilities suffered by a Hindu woman, under the old Shastric Law, in regard to ownership of property-To recognise her status as an independent and absolute owner of her property. Sub Sec. (1) of Sec. 14-Large enough in its amplitude to cover every kind of acquisition of property by a female Hindu, including acquisition in lieu of maintenance-Sub Sec. (2) Sec. 14-Confined only to cases where property was acquired for the first time by a Hindu woman without any pre-existing right. Right to receive maintenance-A pre-existing right-Possession of property pursuant to or in recognition of such a right-Sufficient title to enable ripening of possession into full ownership. Legal position prior to enactment of the Act-Right of a female Hindu, in the property-only a limited interest-Disability imposed by law, wiped out and limited interest enlarged to a full and absolute interest under Sec. 14(1) of the Act. Hindu Adoption and Maintenance Act, 7959–Sec. 3(d)-Definition of `Maintenance’-Includes in all cases-Among other things, provision for residence. In the year 1934 , as a result of arbitration proceedings, between one S widow of a co-parcerner in a Hindu joint family and her father-in-law, A certain immovable properties, belonging to the joint family and a lump sum amount of Rs. 38000 was allotted to said S. The terms of the award made it abundantly clear that the said property was allotted to her for her life time, for the purpose of residence and maintenance and upon her death would revert back to, A his heirs and legal representatives. Said A expired in 1945 and in 1956 the Hindu Succession Act came into force. By virtue of Sec. 14(1) of the said Act, property held by a female Hindu immediately, prior to the commencement of the Act was made her absolute property. In April 1960 said S sold the properties in her possession to the predecessor in title of the Appellants/Vendees. Consequently a suit was filed by the legatees under A’s will challenging the validity of the said sale. The Trial Court, dismissed the suit, holding that S had become, by reason of the Act, the full owner of the disputed property and hence the sale was valid. The High Court, in appeal however took a contrary view and set aside the sale, holding that S had only restricted life estate in the property and therefore, had not become the full owner of the said property. The Vendees, in appeal, before this Court, contended that: (a) S had a pre- existing right to maintenance, (b) that the disputed properties having been allotted to her in lieu of that right, she had acquired a limited ownership of the properties under the award in 1934. (c) That on coming into force of the Hindu Succession Act, her limited ownership had blos-somed into a full ownership. The Respondents resisted the said appeal on the grounds that: (a) For the application of Sec. 14(1), it was requisite that the property should have been `acquired’ and that the acquisition was of ownership rights, comparable to those a limited estate holder under the old Hindu Law (b) Since S had been conceded only the right of residence in the disputed property, she had not acquired any right thereto, (c) Sub Sec. (1) of Sec. 14, presupposed the existence of a limited ownership before the same could be converted into a full ownership, (d) Modes of acquisition contemplated in the Explanation to Section 14(1) suggested that it was the right of ownership that was insisted upon and a right in the nature of a right of residence could not be equated with a right of ownership, (e) The fact that . even during the life time of S the reversioners to whom the disputed property belonged as legatees under A’s will could create a mortgage thereof without her permission, indicated that they continued to be owners of the disputed property. (1) The concession in the award of the right of residence in the disputed property to S was over and above the provisions for her maintenance in terms of money, (f) Even if the award conferred a title to the property for the purpose of Sec. 14(1), it did not come from any pre-existing right. =Allowing the appeal this Court HELD : 1.1. When specific property was allotted to a widow in lieu of her claim for maintenance, the allotment was in satisfaction of her right to be maintained out of the joint family property. It was not a grant for the first time without any pre-existing right in the widow. The widow got the property by virtue of pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right. [378-D] ] 1.2. Sec. 14(1) of the Hindu Succession Act was large in its amplitude and covered every kind of acquisition of property by a female Hindu, including acquisition in lieu of maintenance. Where such property was possessed by her at the date of commencement of the Act, she became its full owner. [378-E] 13. Where property was acquired by a Hindu woman in lieu of her right to maintenance, it was by virtue of a pre-existing right and such acquisition was not within the scope and ambit of Sub- Sec. (2) of Sec. 14, even if the instrument allotting the property prescribed a restricted estate in it. Under the law as it stood prior to the enactment of the Act, a Hindu woman had no more than a limited interest in the property, and the restriction on her interest, being a disability imposed by law, was wiped out and her limited interest enlarged under Sub Sec. (1) of Sec. 14 of the Hindu Succession Act 1956. [378-H; 379-A-B] V. Tulsamma and Ors. v. Sesha Reddy (Dead) by Lrs., [1977] 3 SCR 261, relied on. 2. Sec. 14, was aimed at removing restrictions or limitations on the right of Hindu woman to enjoy, as a full owner property possessed by her, ] so long as her possession was traceable to a lawful origin. It made no difference as to how property was acquired. [379-D] The Explanation to Sec. 14(1) expressly refers to property acquired in lieu of maintenance. Therefore, in respect of property given to a widow and possession by her in lieu of maintenance, there is no further title that she must establish before claiming full ownership under Sec. 14(1). [379-E] Gulwant Kaur and Another v, Mohinder Singh and Ors., [1987] 3 SCR 576, relied on. 3. If a Hindu woman was put in possession of property pursuant to or in recognition of a right to maintenance, it could not be denied that she had acquired a limited right or interest in the property and once that position was accepted it followed that the right got enlarged into full ownership under Sec. 14(1). [379-H; 380-A] 4. The word `acquired’ in Sec. 14(1) is to be given the widest possible meaning. Sub Sec. (2) of Sec 14 was more in nature of a proviso to Sub Sec.(l). It could come into operation only if acquisition by any of the methods indicated therein was made for the first time without there being any pre-existing right in the Hindu woman who was in possession of the property. [380-C] Badri Pershad v. Smt. Kanso Devi, [1970] 2 SCR 95, relied on. 5. The relevant date on which the Hindu woman should be possessed of the property, ought to be the date on which the question of applying the provisions of section 14(1) arise. If on that date the property was possessed by a Hindu woman, it would be held that she was a full owner of it and not merely a limited owner. [380-B] Mongol Singh & Others v. Smt. Rattno (dead), [1967] 3 S.C.R. 45 referred to. 6. Sec. 14 of the Hindu Succession Act was a step in the direction of practical recognition of the equality of the sexes and also a step calculated to ensure uniformity in the law relating to the nature of ownership of `Stridhana’. This dual purpose underlying the Explanation to Sec. 14(1) had to be borne in mind and given effect to when the Section is subjected to analysis and interpretation. Sub Sec. (2) was not to be given a meaning which would defeat that purpose and negative the legislative intent and did not operate to take in properties acquired by a Hindu woman in lieu of maintenance or arrears of maintenance. [382-F-H; 383-A] Bai Vijiya v. Thokorbhai Chelabhai, [1979] 3 SCR 291, referred to. 7. Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she is accustomed. Where provision for her residence is made by giving a life interest in property, that provision is made in lieu of a pre existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Sec. 14(1) the Act. [383-H; 384-B] 7.1. Even the position in law as it stood prior to the Act was that a widow who does not succeed to the estate of her husband as his heir is entitled to maintenance out of his separate property as well as out of property in which he was a co-parcerner at the time of his death. She is entitled to reside in the family dwelling house in which she lived with her husband. A widow who is entitled to maintenance may sue, inter alia, for a charge on a specific portion of her husband’s estate for her maintenance and residence. [385-A-B] Mulla’s Hindu Law (Sixth Edition), referred to. 8. In the present case, perusal of the terms of the reference and the award, it is clear that S acquired the disputed property and the sum of Rs. 38,000 in lieu of her pre-existing right to maintenance. Family disputes had made the continuance of joint lodging and boarding impossible and there-fore an arbitrator was appointed “to allot property and cost” to her for her life, for residence and maintenance. There was, therefore, a clear recogni-tion of her pre-existing right to maintenance, because of which she ac-quired, limited ownership rights in the disputed property and upon the coming into force of the act in 1956, the said limited right acquired by her in 1934 blossomed into full ownership. She was therefore entitled to sell the said property. The sale was thus a valid sale. [383-F; B-C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1304 of 1972.

PETITIONER: MANGAT MAL (DEAD) AND ANR. Vs. RESPONDENT: SMT. PUNNI DEVI (DEAD) AND ORS. DATE OF JUDGMENT01/09/1995 BENCH: M.K. MUKHERJEE, G.T.NANAVATI ACT: HEADNOTE:JUDGMENT: JUDGMENT BHARUCHA, J. This appeal by special leave impugns the judgment and order dated 8th May, 1970 of the High Court of Rajasthan. The issue in the appeal relates to the application … Continue reading

HINDU SUCCESSION ACT – Section 23 – Special provision relating to dwelling houses – Omission of by Hindu Succession (Amendment) Act, 2005 – Effect of – Constitution of India, Article 136. Will – Proof of – Concurrent finding that it was validly proved – No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute – But the same would not prevail over a clear and unambiguous provision. In this appeal, the question involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses. -Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, this Court fails to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] `174th Report of the Law Commission’, referred to. 2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23] [1020-F- G] 2.2. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. [Para 24] [1021-A-B] 3. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, could have been applied provided it takes away somebody’s vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] [1021-C-D] Eramma v. Verrupanna & Ors. (1966) 2 SCR 626; The State of Orissa v. Bhupendra Kumar Bose & ors. AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr. (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni & ors. AIR 1960 SC 794; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry AIR 1961 SC 29; State of Punjab & Ors. v. Bhajan Kaur & Ors. 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma & Anr. (2004) 4 SCC 1; Subodh S. Salaskar v. Jayprakash M. Shah & Anr. 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio & Ors. (2007) 5 SCC 447; Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 and M/s Kesho Ram & Co. & ors. etc. v. Union of India & Ors. (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. & Anr. v. Union of India & Ors. (2000) 2 SCC 536, referred to. 4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031-A] 4.2. A right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible. [Para 28] [1033-C-D] 4.3. In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime. [Para 29] [1033-F] Sheela Devi & Ors. v. Lal Chand & Anr. (2006) 8 SCC 581, held inapplicable. Shyam Sunder & Ors. v. Ram Kumar & Anr. (2001) 8 SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and Others (1996) 3 SCC 644 and Anuj Garg & Ors. v. Hotel Association of India & ors. AIR 2008 SC 663, referred to. Bhe & Ors. v. The Magistrate, Khayelisha & Ors. (2004) 18 BHRC 52 (South African Constitutional Court), referred to. 5. It is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition. [Para 29] [1034-E-F] 6. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. There is no reason to differ therewith. [Para 31] [1037-C-D] Case Law Reference: (1966) 2 SCR 626 held inapplicable Para 22 AIR 1962 SC 945 held inapplicable Para 25 (2006) 2 SCC 740 held inapplicable Para 25 AIR 1960 SC 794 held inapplicable Para 25 AIR 1961 SC 29 held inapplicable Para 25 2008 (8) SCALE 475 held inapplicable Para 25 (2000) 2 SCC 536 referred to Para 25 (2004) 4 SCC 1 held inapplicable Para 26 2008 (11) SCALE 42 held inapplicable Para 26 (2007) 5 SCC 447 held inapplicable Para 26 (1988) 4 SCC 284 held inapplicable Para 26 (1989) 3 SCC 151 held inapplicable Para 26 (2006) 8 SCC 581 held inapplicable Para 26 (2001) 8 SCC 24 referred to Para 26 (1996) 3 SCC 644 referred to Para 27 (2004) 18 BHRC 52 referred to Para 29 AIR 2008 SC 663 referred to Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 2009. From the Judgment & Order dated 29.01.2007 of the High Court of Judicature at Madras in O.S.A. Nos.196 and 197 of 2001. K.V. Viswanathan, P.B. Suresh and Vipin Nair (for Temple Law Firm) for the Appellant. K. Kamamoorthy, B.P. Balaji, N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2535 OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007] G. Sekar …Appellant Versus Geetha & Ors. …Respondents JUDGMENT S.B. SINHA, J : 1. Leave granted. 2. Effect of the amendment in the Hindu Succession Act, 1956 (for short “the … Continue reading

whether re-marriage of a widow prior to Hindu Succession Act, 1956 would divest her of even the limited ownership of her deceased husband’s property, having due regard to the provisions of Section 2 of Hindu Widow’s Re-marriage Act, 1856 (hereinafter referred to as `the Act of 1856′); and secondly, whether disqualification of inheritance, if any, by reason of re-marriage would stand obliterated by reason of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage: while it is true that Section speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a male Hindu to inherit simultaneously with the son, daughter and other heirs specified in class I of the Schedule. As a matter of fact she takes her share absolutely and not the widow’s estate only in terms of Section 14. Re-marriage of a widow stands legalised by reason of the incorporation of Act of 1956 but on her re-marriage she forfeits the right to obtain any benefit from out of her deceased husband’s estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on the next heir of her deceased husband as if she were dead. Incidentally, the act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14 (1) of the Hindu Succession Act was relied upon by Defendant No. 1.

CASE NO.: Appeal (civil) 425 of 1982 PETITIONER: VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS. RESPONDENT: KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND ORS. DATE OF JUDGMENT: 24/11/1999 BENCH: S.B. MAJMUDAR & M. SRINIVASAN & UMESH C. BANERJEE JUDGMENT: JUDGMENT 1999 Supp(4) SCR 522 The Judgment of the Court was delivered by BANERJEE, J. Two specific questions … Continue reading

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