Holding

A female Hindu's property inherited from her husband devolves to the heirs of the husband under Section 15(2); it escheats to the Government only in the total absence of any qualified heir under Sections 15(1) or 15(2).

Summary

Mahan Kaur, a Hindu woman, inherited agricultural land from her husband. After her intestate death, the revenue authorities mutated the land in favour of the State, claiming no qualified heir existed. Balwant Singh, the grandson of Mahan Kaur's brother, sued for possession and for a declaration that he could redeem the mortgaged portion. The trial court dismissed the suit, the District Judge affirmed, but the High Court decreed possession against the mortgagees. The Supreme Court examined Sections 15(1), 15(2) and 29 of the Hindu Succession Act, 1956 and held that property of a female Hindu who inherited from her husband devolves to the heirs of the husband under Section 15(2); only when there is a total absence of any qualified heir does the property escheat to the Government under Section 29. Consequently, the State's claim failed and the decree against the mortgagees was set aside, leaving the mortgage issue to be decided separately.

Issues considered

The applicability of Section 29 of the Hindu Succession Act, 1956 to property of a female Hindu dying intestate who inherited from her husband.
Interpretation of Section 15(2) of the Hindu Succession Act – whether it eliminates other classes of heirs.
Whether the High Court could decree possession against mortgagees when the right to redeem was not adjudicated.

Legislation cited

Hindu Succession Act, 1956s. 15(1), s. 15(2), s. 29

Subjects

Hindu Succession ActSection 15Section 29escheatintestate successionfemale Hindu inheritancemortgage redemptionpossession suit

Judgment

A STATE OF PUNJAB
v.
BALWANT SINGH & ORS.

OCTOBER 9, 1991

[K JAGANNATHA SHETTY AND YOGESHWAR DAYAL, JJ.)
B
Hindu Succession Act, 1956:

Section 15(1) and (2f-Hindu female dying intestate leaving behind
property derived from her husband-Devolution of-O~ject of sub-section
C (2)(h)-Not to eliminate the other heirs under sub-section (1) and not to
exclude them from inheritance altogether.

Section 29-l'roperty escheated to Government on failure of heirs--
Only when there is total absence of heirs~vailabi/ity of heirs under sub-
D section (1) or (2) of Section 15--Whether precludes escheat.
One Smt. 'M' inherited from her husband certain agricultural lands.
Some of the lands were under mortgage and in the possession of
defendants 2 to 6. She died intestate after the Hindu Succession Act, 1956
came into force. As there was no heir entitled to succeed to her property,
E mutation was sanctioned in favour .of the State. The grandson of her
brother claiming to be her legal heir filed a suit for possession of the
property and for a declaration that he was entitled to redeem the
mortgaged property from defendants 2 to 6:The suit was resisted by the
First Defendant, viz., the State on the ground that the intestate had left no .,,.,...
heir to succeed and the mutation effected in favour of the State was valid.
F .Defendants 2 to 6 contended that the right to redeem the m_ortgage had
extinguished, and they have. become the owners of the property as .they
•
were in possession for more than siXty years.

The Trial Court dismissed the suit holding that the plaintiff Was not
entitled to succeed to the property of the· deceased since the property was
G inherited from her husband. As regards the mortgage, itWas left open to
be decided later as agreed to by the parties.

Plaintiff preferred an appeal and the District Judge dismissed the
same. On a second appeal preferred by him, ·the High Court decreed the

H 458
SI'ATEv. BALWANTSINGH 459

suit for possession even against defendants 2 to 6. The State as well as the A
defendants 2 to 6 have preferred the present appeals by special leave.

The appellant-State contended that the plaintiff-Respondent was not
a qualified heir under the Hindu Succession Act and hence it waSi a case of
failure of heirs resulting in the devolution of estate on the Government.
The other appellants (Defendants 2 to 6) contended that the High Court. B
ought not have decreed the suit against them since the
plaintiff-Respondent's right to redeem the mortgage was not adjudged by
--f the trial court and by agreement the question was expressly left open.

Dismissing the appeal preferred by the State and allowing the C
appeal of defendants 2 to 6, this Court,

HELD: 1. The property is escheated to the Government when an
intestate has left no heir qualified to succeed to his or her property. The
property shall devolve on the Government and the Government shall take
the property .subject to all the obligations and liabilities of the property. It D
is only in the event of the deceased leaving behind no heir to succeed, the
State steps in to take the property. The State does not take the property as
a rival or preferential heir of the deceased but as the Lord paramount of
the whole soil of the country. [464 B,C)

2. Section 29 of the Hindu Succession Act, 1956 shall not operate in E
favour of the State if there is any other heir of the intestate. Indeed,
Section 29 itself indicates that there must be failure of heirs. 'Failure' of
heirs means the total absence of heirs to the intestate. A female Hindu
.being the full owner of the property becomes a fresh stock of descend. If
she leaves behind any heir either under sub-section. (1) or under F
sub-section (2) of Section 15, her property cannot be escheated. [464 E,FJ

Htilsbury~s Laws of England, 4th Edn. Vol. 17para1439; referred to.
3.1. Sub-Section (2) of Section 15, intended only to change the order
of succession specified urider sub-section (1) and not to eliminate the
other classes of heirs. Section 15(2) came to be incorporated on the G
recommendations of the Joint Committee of the two Houses of Parlia-
ment~ The report of the Joint Committee which was accepted by Parlia-
ment indicates that this sub-section was intended to revise the order of
..
•
succession among the heirs to a Hindu female and to prevent the proper-
ties. from passing into the hands to persons to whom justice would
H
460 SUPREME COURT REPORTS [1991) SUPP. 1 S. C.R.

A demand that they should not pass. That means the property should go in
the first instance to the heirs of the husband or to the source from where 'T'I"'.
it came. [464 F, H, 465 CJ
3.2. Sub-section (2) (b) of Section 15 emphasises that the property of
the intestate shall not devolve upon the heirs referred to in sub-section (1)
in the order specified thereunder but upon heirs of the husband. The object
B is not to eli_minate the other heirs under sub-section (1) and not to exclude
. them from inheritance altogether. There is no justice in such a
. construction of Section 15. The P'arliament could not have intended that
result.[465 F-G.]

C Bllajya v. Gopikabai and Anr., [1978) 3 SCR 561, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 851 &
4125 of1991.

From the Judgment and Order dated 15.12.1982 of the Punjab &
D Haryana High Court in R.S. A. No. 754 of 1974.
U.R. Lalit, M.R. Sharma, AS. Soha:l, .G.K Bansal, Anil Nauriya, ~ ..
KL. Hathi, Ms. Anjna Sharma~ N.A. Siddiqui and Mrs. Hemantika Wahi
for the appearing parties.

The Judgment of the Court was delivered by
E
K. JAGANNATHA SHETIY, J. These are defendants' appeal and
special leave petition arising out of a suit for possession brought by Bal-·
want Singh - the plaintiff. In the Special Leave Petition, we condone the
delay and grant ieave. The suit was dismissed by the Court of first instance
and the dismissal was affirmed by the appellate court but decreed by the
F High Court in the second appeal.

The issue raised in the appeal is of considerable importance and it
relates to the construction of Section 15 of the Hindu Succession Act, 1956
('the Act'). One Smt. Mahan Kaur, wife of Jaimal Singh inherited from
her husband certain agricultural" land measuring llQ kanals 12 marlas
G situate in village Hamhal, Jakhe-Pal in Sangrur District. Some of the lands
were under mortgage. and are in possessiOn of defendants 2 to 6. After
. coming into force of the Act, Mahan Kaur died intestate. On being in-
formed that there was no heir entitled to succeed ·to lier property, the
Revenue Assistant Collector sanctioned mutation in favour of the State.
Balwant Singh claiming to be a legal heir of Mahan Kaur. brought the suit
H out of which the present appeal arise. :rhe suit was for possession of the
SfATEv. BALWANfSINGH [SHETfY,J.) 461

property of the decease$! and also for a declaration decree that he was A
""" entitled to redeem the mortgaged property from defendants 2 to 6. The
suit was resisted by the State on the ground that the intestate has left
behind no heir to succeed and the mutation effected in favour of the State
was valid. Defendants 2 to 6 contended that the right to redeem the
mortgage has ~en extinguished and they have become the owners of the
property by being in possession for more than sixty years.
B
The trial court held that the plaintiff was not entitled to succeed to
the property of the deceased since the property was inherited from her
husband. The issue relating to· subsistance or otherwise of the mortgage
was left open to be decided later as agreed upon by counsel for both the
parties. The suit was accordingly dismissed by the trial court. The plaintiff's
appeal against the decree was dismissed by the District Judge, Sangrur.
c
The sec0nd appeal preferred by the plaintiff was, however, accepted by the
High Court. The High Court decreed the suit for possession even against
defendants 2 to 6. That part of the decree has been· challenged by de fen-
dants 2 to 6 in S.L.P. (Civil) No. 13923 of 1985. Their grievance is that the
High Court ought not to have decreed the suit. against them since the D
plaintiff's right to redeem the mortgage was not adjudicated by the trial
- ~
court and by agreement, the question was expressly left open. The submis-
sion of the defendants 2 to 6 appears to be correct and the decree against
them m;ade by the High Court is plainly untenable. There is indeed no
controv~rsy on that aspect of the matter. ·
E
It is not in dispute that Mahan Kaur inherited the suit property from
her husband. She had no issue and she died intestate. It is also not in.
dispute that there is no heir from her husband side ·entitled to succeed to ·
the property. The plaintiff is grandson of the brother of Mahan Kaur.
According to him he is entitled to get the property of the deceased. Th~
case of the State is that the plaintiff is not her qualified heir under the Act F
and it is a case of failure of heirs resulting in the devolution of the estate on
the Government.

The issue raised in the case turns on the rules of succession to a
property of a female dying intestate. The mode ·of succession has been
prescribed under Section 15 of ~he Act. Section 15 has. to be read alongwith G
Section 16. They in turn have to be read alongwith the provisions of Section
* 8. The property devolving upon the State has been provided under Section

l 29 of the Act.

Section 15 is important and it may be read in full:
H
462 SUPREME COURT. REPORTS (1991) SUPP. 1 S. C.. R.

A "15. General rules of succession in the case of female Hindus- (1)
The property of a female Hindu dying intest.ate shall d~volve according to
the rules set out in section 16 -

(a) firstly, upon the sons and daughters (including the children
of any pre-deceased son or daughter) and the husband;
B (b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and
c (e) lastly upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1) -

(a) any property inherited by a female Hindu from her father
or mother shall devolve, in the absence of any son or daughter
D of the deceased (including the children of any pre-deceased
son or daughter), not upon the other heirs referred to in sub-
section (1) in the order specified therein, but upon the heirs of
the father; and

(b) any property inherited by a female Hindu from her hus-
E band or from her father-in-law shall devolve, in the absence of
any son or daughter of the ·deceased (including the children of
any pre-deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified therein, but
upon the heirs of the husband."

F Sub-section (1) of Section 15 groups the heirs of a female intestate
into fiye categories and they are specified under clauses (a) to (e). As per
Sections 16 Rule 1 those in one clause shall be preferred to those in the
succeeding clauses and those included in the same clause shall take simul-
taneously. Sub- section (2) of Section 15 begins with a non-obstante clause
providing that the order of succession is not that prescribed under sub-sec-
G tion (1) of Section 15. It carves out two exceptions to the general order of
succession provided under sub-section (1). The first exception relates to
the property inherited by a female Hindu from her father or mother. That
property shall devolve, in the absence of any son or daughter of the
de.ceased (including the children of the pre-deceased son or daughter), not
H upon the other heirs referred to in sub-section (1) in the order specified
STATE v. BALWANT SINGH [ SHEITY, J. J 463

therein, but upon the heirs of the father. The second exception is in rela- A
~· tion to the property inherited by a female Hindu from her husband or from
her father-in-law. That property shall devolve, in the absence of any son or
daughter of the deceased (including the children of the. pre-deceased son
or daughter) not upon the other heirs referred to under sub-section (1) in
the order specified thereunder but upon the heirs of the husband.
B
The process of identifying the heirs of the intestate under sub-section
(2) of Section 15 has been explained in Bliajya v. Gopikabai and anr. {1978)
~· 3 SCR 561. There this Court observed that the rule under which the
property of the intestate would devolve is regulated by Rule 3 of Section 16
of the Act. Rule 3 of Section 16 provides that "the devolution of the proper-
ty of the intestate on the heirs referred to in clauses (b), (d) and (e) of
c
sub-section (1) and in sub-section (2) of Section 15 shall be in the same
order and according to the same rules as would have applied if the proper-
ty had been the father's or the mother's or the husband's as the case may
be, and such person had died intestate in respect thereof immediately after
the intestate's death". This rule creates a fiction for the purpose of ascer- D
~
~
taining the order of devolution. It has to be assumed that the husband had
died intestate immediately after the female intestate's death. Bearing in
mind this fiction, one has to go to the Schedule under Section 8 of the Act
to find out the heirs of the husband who are entitled to succeed to the
property of the intestate. E
The High Court has stated that the property inherited by Mahan
Kaur from her husband became her absolute property in view of the
·- .,... provisions of Section 14 and the property would devolve upon the heirs
specified under Section 15(1). It has also observed that the plaintiff would
be entitled to succeed to the estate of Mahan Kaur even under Section F
15 (2) being an heir of her fath~r under Entry (d) of sub-section (1) of
Section 15 of the Act. In our opinion, both these reasons are basically
fauity and cannot be accepted.

,. Counsel for the State argued that the property of the intestate has to
be dealt with only under sub-section (2) of Section 15, and since there is no
heir in that category the property shall devolve on the Government under
Section 29.

"Section 29 provides as follows:
G

H
"ESCHEAT
464 SUPREME COURT REPORTS (1991] SUPP. 1 S. C. R

A "Failure of heirs...., If an intestate has no heir qualified to suc-
ceed to his or her property in accordance with the provisions
of this Act, such property shall devolve on the Government:
and the Government shall take the property subject to all the
obligations and liabilities to which an heir would have been
subject."
B
The property is escheated to the Government when an intestate has
left no heir qualified to succeed.to his or her property. The property shall
devolve on the Government and the Government shall take the property
subject to all the obligations and liabilities of the property. It is only in the
C event of the deceased leaving behind no heir to succeed, the State steps in
to take the property.

The State does not take the property as a rival or preferential heir of
the deceased but as the Lord paramount of the whole soil of the country. In
.Halsbury's Laws of England, 4th ed. Vol. 17 para 1439 it is stated as follows:
D "To whom land escheated - Escheat in the case of death in-
testate before 1926 was to the mesne lord is he could be found
but, as since 1290 sub-infeudation has been forbidden, in the
great majority of cases there was no record of the mesne
te'nure, ·and the escheat was to the Crown as the lord
paramount of the whole soil of the country."
E
Section 29, in our opinion, shall not operate in favour of the State
if there is any other heir of the intestate. Indeed, Section 29 itself indicates
that there must be failure of heirs. 'Failure' of heirs means the total ab-
.sence of heirs to the intestate. -It is important to remember that female
Hindu being the full owner of the property becomes a fresh stock of des-
F ·cend. If sh·e leaves behind any heir either under sub-section (1) or under
sub-section (2) of Section 15, her property cannot be escheated..

. Sub-section (2) of Section 15, in our opinion, was intended only to
change the order of succession specified under sub~section (1) and not to
·eliminate the other classes of heirs. This view finds support from the
G . recommendations of the Joint Committee of two Houses of Parliament
which went into the question of the Hindu Succession Bill. The Hindu
Succession Bill 1954 as originally introduced in the Rajya Sabha did not
contain any clause corresponding to sub-section (2) of Section 15. It came
to be incorporated on the recommendations of the Joint Committee of the
two Houses of Parliament. The reason given by the Joint Committee is
H found in Clause 17 of the Bill which reads as follows:
SfATEv. BALWANTSINGH [SHE'ITY,J.) 465

"While revising the order of succession among the heirs to a A
Hindu female, the Joint Committee have provided that proper-
ties inherited by her from her father reverts to the family of the
father in the absence of issue and similarly property inherited _
from her husband or father-in-law reverts to the heirs of the
husband in the absence of issue. In the opinion of the Joint
Committee such.~ provision would prevent properties passing B
into the hands--of persons to whom justice would demand they
should not pass."

The report of the Joint Committee which was accepted by Parlia-
ment indicates that sub-section (2) of section 15 was intended to revise the
order of succession among the heirs to_ !l Hindu female and to prevent the C
properties from passing into the hands of persons to whom justice would
demand that they should not pass. That means the property should go in
the first instance to the heirs of the husband or to the source from where it
came.

In support of the contrary submission, attention was drawn to a pas-
D
sage-from Hindu Law by.S.V. Gupte in which it is stated "that the heirs of
the husband will take where the property was inherited from the husband
or from the father-in-law. The object is _to eliminate the father and the
mother, the heirs of the father, and the heirs of the mother altogether from
succession where the property inherited was from the husband or the E
father-in-law and the deceased has left no son or daughter or any
grandchild. The effect of the clause is not only to eliminate the three clas-
ses of the heirs, being those mentioned in clauses (c), (d) and (e) to sub-
section (1), but to change the order of succession." (1981 Ed. Vol. 2 p. 522).
We however, find it difficult to share this view: It does not get support from
F
·the terms of sub-section (2) of Section 15. Sub-section (2)(b) emphasises
that the property of the intestate shall not devolve upon the heirs referred
to in sub-section (1) in the order specified thereunder but upon heirs of the
husband. The object seems to be not to eliminate the other heirs under
sub-section (1) and not to exclude them from inheritance altogether. There
is no justice in such a construction of Section 15. The Parliament could not G
have intended that result. ·

In this view of the matter, we dismiss the Civil Appeal No. 8Sl of
1991 preferred by the State but not for the reasons stated by the High
Court. We allow the appeal arising out of SLP (Civil) No. 13923 of 1985 H
466 SUPREME COURT REPORTS. (1991] .SUPP. 1 S. C.R.

A and set aside that portion of the decree made by the High Court as against ~
the defendants 2 to 6. The suit filed by the plaintiff as against defendants 2
to 6 stands dismissed. The parties may adjudicate elsewhere the subsis-
tence or otherwise of the mortgage in question.

B In the circumstances of the case, there will be no order as to costs.

G.N. · CA No. 851/91 dismissed and
CA No. 4125/91 allowed. -r-

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