B.C. SINGH (D) BY LRS.versusJ.M. UTARID (D) BY LRS.

                          [2018] 7 S.C.R. 747                                747


                      B.C. SINGH (D) BY LRS.                                 A
                                    v.
                     J.M. UTARID (D) BY LRS.
                    (Civil Appeal No. 6935 of 2011)
                             MAY 08, 2018                                    B
        [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
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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            D
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
                                                                             E
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            F
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                                         G
      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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                                   747
748            SUPREME COURT REPORTS                       [2018] 7 S.C.R.


A     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
B     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
C     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
D     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
E     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
F     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
G     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 1/4 th share in the property. [Para 18][753-G-H;
H     754-A-B]
     B.C. SINGH (D) BY LRS. v. J.M. UTARID (D) BY LRS.                         749


      6. The rules of distribution are in the order of priority as             A
contained in Sections 42 to 48. It is clear from scheme of the Act
that when intestate has not left behind any lineal descendant and
has only kindred, the nearer kindred excludes the distant kindred.
The wife’s relative being a distant kindred is not entitled to
succeed any share in the property since the intestate has left
                                                                               B
behind her real sister. [Para 20][754-D-E]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6935
of 2011.
      From the Judgment and Order dated 22.08.2005 of the High Court
of Uttaranchal at Nainital in Second Appeal No. 31 of 2001(Old No.             C
1510 of 1985).
      Ms. Binu Tamta, Sudarshan Singh Rawat, Advs. for the Appellants.
      Varinder Kumar Sharma, Ms. Parul Sharma, Shantanu Sharma,
Yugal K. Prasad, Advs. for the Respondents.
                                                                               D
      The Judgment of the Court was delivered by
       S. ABDUL NAZEER, J. 1. This appeal by the appellants-plaintiff
is directed against the judgment and decree dated 22.08.2005 in Second
Appeal No.31/2001 (Old No. 1510.1985) passed by the High Court of
Uttaranchal at Nainital.
                                                                               E
      2. Brief facts necessary for disposal of this appeal are narrated
herein below.
       3. Dr. B.C. Singh and his wife Dr. Stella Lillian Singh (‘Dr. S.L.
Singh’ for short) had purchased immovable property known as Capel
Cottage No.2/3, along with Annexe No.2/3/4 and Annexe No.2/3/5                 F
situated in Survey No.199 at Ranikhet by deed of sale dated 11.2.1952.
Dr. S.L. Singh died on 20.3.1976 leaving no issue. Dr. B.C. Singh and
his deceased wife Dr. S.L. Singh were Christians. In the year 1968 Dr.
S.L. Singh became acquainted with J.M. Utarid, and she invited him to
Ranikhet. J.M. Utarid came to Ranikhet in 1969 and stayed at the
home of Dr. B.C. Singh and his wife. During this period J.M. Utarid            G
started living in Capel Cottage Annexe No.2/3/5 after it was vacated by
its previous tenant. After sometime, Dr. B.C Singh asked J.M. Utarid
and his children to vacate the annexe but they failed to vacate the premises
in question. Dr. B.C. Singh filed a suit for eviction against J.M. Utarid.
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750             SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A     The suit was dismissed on 28.8.1978 as Dr. B.C. Singh failed to prove
      the tenancy of Mr. J.M. Utarid. The revision filed against the said order
      was also dismissed. Thereafter, Dr. B.C. Singh filed Civil Suit No.32 of
      1980 against Mr. J.M. Utarid and his two sons for possession of the
      property and for damages on the ground that they were the licensees in
      respect of the suit property and that their licence had been terminated
B
      by a notice served on 4.10.1980.
             4. The defendants filed the written statement asserting that the
      plaintiff is not the sole owner of the property. It was contended that
      deceased Dr. S.L. Singh was their relative. On her death, defendant
      No.1, a distant kindred, succeeded to 1/4th share in the entire property.
C     Therefore, the plaintiff was not entitled for relief of possession of the
      property nor was he entitled for any damages.
             5. The trial court dismissed the suit by its judgment and decree
      dated 24.11.1981. Dr. B.C. Singh challenged the said decree by filing
      Civil Appeal No.21 of 1981 before the first Appellate Court. The First
D     Appellate Court by its judgment and decree dated 3.9.1985 allowed the
      appeal, set aside the judgment and the decree of the trial court and the
      suit was decreed. This decree was carried in appeal by the defendants
      in Second Appeal before the High Court. The High Court by its judgment
      and decree dated 22.8.2005 reversed the judgment and decree of the
E     First Appellate Court. During the pendency of the appeal before the
      High Court, Dr. B.C. Singh died and his legal representatives have been
      brought on record. Similarly, the first defendant J.M. Utarid also died
      and his LRs. were already on record.
             6. We have heard learned counsel for the parties. The contention
F     of the learned counsel for the appellants-plaintiff is that neither J.M.
      Utarid nor his children (the defendants in the suit) were the co-owners
      of the suit property and that the original plaintiff, namely, Dr. B.C. Singh
      was the sole owner of the property. The defendants were only licensees
      and that their licence had been terminated. It is further contended that
      even if the defendants were related to Dr. S.L. Singh they could not
G     succeed to her share since Ida Utarid, the sister of Dr. S.L. Singh, was
      alive. She was preferential heir as compared to the defendants. At
      best, first defendant was a distant kindred as compared to Ida Utarid
      and was not entitled to succeed to the property. Though Ida Utarid was
      a foreign national there was no bar for her to succeed to her share in the
H     property of her deceased sister Dr. S.L. Singh.
     B.C. SINGH (D) BY LRS. v. J.M. UTARID (D) BY LRS.                       751
                  [S. ABDUL NAZEER, J.]

       7. On the other hand, learned counsel appearing for the               A
respondents-defendants submits that Ida Utarid, is not entitled to succeed
to the estate of Dr. S.L. Singh as she is a Pakistani national. The
defendants being the kindred of deceased Dr. S.L. Singh are entitled to
1/4th undivided share in the suit property. They are the co-owners and
not the licensees as contended by the plaintiff. Therefore, the High
                                                                             B
Court has rightly dismissed the suit.
     8. We have carefully considered the submissions of the learned
counsel made at the Bar and perused the materials placed on record.
      9. Dr. S.L. Singh died on 20.3.1976 without leaving any issue. It
is not disputed that Ida Utarid is the real sister of Dr. S.L. Singh.        C
According to the admitted pedigree, M. Utarid had two sons, namely,
Dr. M.B. Utarid and Nazir Utarid. Nazir Utarid had two daughters,
namely, Dr. S.L. Singh (wife of the original plaintiff) and Ida Utarid.
J.M. Utarid (defendant No.1) is the son of E. Udarid and grandson of
Dr. M.B. Utarid. Dr. S.L. Singh is admittedly an Indian Christian.
Therefore, the Indian Succession Act, 1925 (for short ‘the Act’) would       D
be applicable to the succession of the property left by her. This Act
does not bar the succession of property of any Indian Christian by a
person who is not an Indian national. There is no prohibition for
succession of the property in India by a foreign national by inheritance.
       10. Admittedly, the immovable property known as Capel Cottage         E
was jointly purchased by the original plaintiff Dr. B.C. Singh and his
wife Dr. S.L. Singh. Therefore, each of them hold equal share in the
entire property. According to the defendants, first defendant is the
kindred of deceased Dr. S.L. Singh and has become the co-owner after
her death. Hence, he cannot be evicted from the suit property. The           F
subject matter of the suit is Annexe No.2/3/5 of Capel Cottage.
      11. Section 24 defines kindred or consanguinity, which is as under:-
      “24. Kindred or consanguinity.-Kindred or consanguinity is the
      connection or relation of persons descended from the same stock
      or common ancestor.”                                                   G
      12. Sections 25 and 26 classify lineal consanguinity and collateral
consanguinity, which is as under:
      “25. Lineal consanguinity.- (1) Lineal consanguinity is that which
      subsists between two persons, one of whom is descended in a
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752            SUPREME COURT REPORTS                          [2018] 7 S.C.R.


A           direct line from the other, as between a man and his father,
            grandfather and great-grandfather, and so upwards in the direct
            ascending line, or between a man and his son, grandson, great-
            grandson and so downwards in direct descending line.
            (2) Every generation constitutes a degree, either ascending or
B           descending.
            (3) A person’s father is related to him in the first degree, and so
            likewise is his son; his grandfather and grandson in the second
            degree; his great-grandfather and great-grandson in the third
            degree, and so on.”
C           “26. Collateral consanguinity.- (1) Collateral consanguinity is
            that which subsists between two persons who are descended from
            the same stock or ancestor, but neither of whom is descended in
            a direct line from the other.
            (2) For the purpose of ascertaining in what degree of kindred any
D           collateral relative stands to a person deceased, it is necessary to
            reckon upwards from the person deceased to the common stock
            and then downwards to the collateral relative, a degree being
            allowed for each person, both ascending and descending.”
             Thus lineal consanguinity is that between two persons connected
E     in one straight line whether descending or ascending, drawn from the
      propositus. Collateral consanguinity is between two persons connected
      by a line which is not a straight line.
             13. 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
F     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. Section 33(b) is relevant for
G
      the purpose, which is as under:-
            “33. Where intestate has left widow and lineal descendants,
            or widow and kindred only, or widow and no kindred. -Where
            the intestate has left a widow—
H
     B.C. SINGH (D) BY LRS. v. J.M. UTARID (D) BY LRS.                           753
                  [S. ABDUL NAZEER, J.]

       (a) ……..;                                                                 A
       (b) [save as provided by section 33A], if he has left no lineal
       descendant, but has left persons who are of kindred to him, one-
       half of his property shall belong to his widow, and the other half
       shall go to those who are kindred to him, in the order and according
       to the rules hereinafter contained;                                       B
       (c) ………”
        14. Section 35 states that a husband surviving his wife has the
same rights in respect of her property, if she dies intestate, as a widow
has in respect of her husband’s property, if he dies intestate.
                                                                                 C
       15. In the instant case, the intestate 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.
                                                                                 D
       16. Dr. B.C Singh has already half share in the property by virtue
of the sale deed dated 11.2.1952. He being the husband of Dr. S.L.
Singh would succeed half of the share in the property held by her as
provided under Section 33(b) read with Section 35 of the Act. Thus, he
holds 3/4th share in the entire property. Now the question is what should
happen to the remaining 1/4th share in the property?                             E
       17. Section 47 provides for devolution of the property where
intestate has left neither lineal descendant, nor father, nor mother. The
said Section is as under:-
       “47. Where intestate has left neither lineal descendant, nor
                                                                                 F
       father, nor mother. - Where the intestate has left neither 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 (if
       more than one) taking in equal shares only the shares which their
       respective parents would have taken if living at the intestate’s          G
       death.
       18. It is clear from this provision 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
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754                SUPREME COURT REPORTS                         [2018] 7 S.C.R.


A     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, Dr. S.L. Singh has
      left behind her sister, Ida Utarid. She has not left behind any lineal
      descendant. Ida Utarid was the only near kindred and preferential heir
      of the intestate and she would have succeeded to 1/4th share in the
B
      property.
             19. It is only when intestate has left neither lineal descendant, nor
      parent, nor brother and nor sister, the property has to be divided among
      those relatives of the intestate who are in the nearest degree of kindred
      to him. This is clear from Section 48, which is as under:-
C
             “48. Where intestate has left neither lineal descendant, nor
             parent, nor brother, nor sister. - Where the intestate has left
             neither lineal descendant, nor parent, nor brother, nor sister, his
             property shall be divided equally among those of his relatives who
             are in the nearest degree of kindred to him.”
D
             20. The rules of distribution are in the order of priority as contained
      in Sections 42 to 48. It is clear from scheme of the Act that when
      intestate has not left behind any lineal descendant and has only kindred,
      the nearer kindred excludes the distant kindred. The first defendant being
      a distant kindred is not entitled to succeed any share in the property
E     since the intestate has left behind her real sister.
            21. We find no merit in the contention of the respondents that
      they are entitled to succeed 1/4th share in the property. We, therefore,
      allow this appeal, set aside the judgment and decree of the High Court
      and restore the judgment of the First Appellate Court. There will be no
F     orders as to costs.


      Ankit Gyan                                                      Appeal allowed.



G




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