PETITIONER:
SMT. KASTURI DEVI
Vs.
RESPONDENT:
DEPUTY DIRECTOR OF CONSOLIDATION & ORS.
DATE OF JUDGMENT04/11/1976
BENCH:
FAZALALI, SYED MURTAZA
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION:
1976 AIR 2595 1977 SCR (2) 25
1976 SCC (4) 674
ACT
Hindu Succession Act, 1956--Whether remarriage would bar
a mother from succeeding as son’s heir.
HEADNOTE
On the demise of Karuna, there were two rival claims for
inheritance to his property. One by the appellant who
claimed it as his widowed mother,’ and the other by his
father’s brother who contended that the appellant had
remarried and was thereby barred from succeeding as Karuna’s
heir. After the consolidation officer had decided against
her, and the settlement officer, Etah Camp, Aligarh, in her
favour, the Deputy Director of Consolidation decided a
revision petition against the appellant holding that her
remarriage excluded her from the inheritance. Thereafter,
the appellant unsuccessfully filed a writ petition before
the High Court.
Allowing the appeal, the Court
HELD: Kasturi claimed inheritance not as a widow of her
husband Madhua but as the mother of Karua. We are entirely
in agreement with the view that "unchastity of a mother is
no bar to her succeeding as heir to her son, nor does her
remarriage constitute any such bar". Under the Hindu law,
the bar of inheritance would not apply to a mother, as it
would to a widow. [27B-D]
’Hindu Law’ 14th Edn. clause iii) p. 116
followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
789 of 1975.
(Appeal by Special Leave from the Judgment
and Order dated 25.2.1975 of the Allahabad
High Court in Civil Misc. Writ No. 3756 of
1971).
E.C. Agarwala, for the Appellant.
B. Datta, for Respondent No. 2.
The Judgment of the Court was delivered by
FAZAL ALI, J.---This appeal by special leave involves
a pure question of law regarding inheritance to the proper-
ty of one Karua. Briefly put, the case of the appellant was
that the disputed Khata was recorded in the name of Karua
the son of Madhua who died leaving behind his widow Kasturi
and his son Karua. He had two brothers Khushi Ram and
Lekhraj who claimed to be the next reversioners. It is
obvious that on the death of Madhua, Kasturi as the widow
got half share in the property and the other half went to
Karua. The dispute seems to have arisen on the death of
Karua when two rival claims were put forward, one by Kasturi
who contended that she was entitled to inherit as mother
of Karua, whereas Khushi Ram averred that as Kasturi had
married Lekhraj she should be divested of her interest and
excluded from inheritance as a result of which the property
would pass on to Khushi Ram and Lekhraj in equal shares
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as next reversioners. The appellant also denied the fact
that Kasturi had remarried Lekhraj. The first Court of
the Consolidation Officer negatived the claim of Kasturi
and directed mutation to be made in the name of Khushi Ram
under the provisions of the U.P. Consolidation of Holdings
Act. The present appellant filed an appeal before the
Settlement Officer, Etah Camp, at Aligrah, against the
decision of the Consolidation Officer who reversed the
finding of the Consolidation Officer and held that as the
re-marriage of Kasturi with Lekhraj had not been proved, the
appellant Kasturi was entitled to be recorded in the revenue
papers. Against this decision there was a revision by
Khushi Ram before the Deputy Director of Consolidation who
set aside the order of the Settlement Officer and restored
that of the Consolidation Officer. The Deputy Direct. or
of Consolidation held that there was abundant evidence to
prove that Kasturi had re-married Lekhraj and therefore, in
law she would be excluded from inheriting the property and
was not entitled to be mutated in respect of the Khata in
question. The appellant thereupon unsuccessfully filed a
writ petition before the High Court and hence this appeal
before this Court.
Learned counsel for the appellant has argued this appeal
on the basis of the facts proved in this case. He has not,
and could not, assail the finding of fact arrived at by the
Deputy Director of Consolidation which was the last revi-
sional court in this case. Before proceeding to determine
the point in controversy, it may be necessary to state the
admitted facts. In the first place it is not disputed
that the claim of Kasturi was made after the death of Karua.
By that time Kasturi as the widow of Madhua had already
inherited half the share. So the dispute centered round
the share of Karua alone. The finding of fact arrived at by
the Deputy Director of Consolidation that Kasturi had remar-
ried Lekhraj cannot be disturbed. In fact there was some
controversy regarding the dates of the death of Madhua or
the re-marriage of Kasturi with Lekhraj. The position
however, seems to have been set at rest by the evidence of
the respondent himself who deposed that Madhua died about
10 years from the date of deposition which would take us to
the year 1960. The witness further admits that Kasturi
remarried Lekhraj 2 or 3 years after Madhua’s death which
would take us to 1963. The respondent further deposes that
Karua died 11/2 years from the date of deposition which
fixes the death of Karua in the year 1970. These dates are
important to show that inheritance of both Karua and
Kasturi would be governed by the provisions of the Hindu
Succession Act which had come into force even during the
lifetime of Madhua.
We may now examine the contentions raised by counsel for
the appellant. Counsel submitted that assuming that
Kasturi had remarried Lekhraj she had acquired an absolute
interest in the property and no question of divestment of
the property could arise in view of the provisions of the
Hindu Succession Act. Secondly, it was argued that Kasturi
in the instant case put forward her claim for inheritance
not as widow of Madhua but as mother of Karua,. because it
was the property of Karua which was in dispute. In the view
that we take in the present appeal, it is not necessary at
all to
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decide as to whether or not Kasturi would be disinherited or
divested of the property even after having acquired an
absolute interest under the Hindu Law. This is a moot
question and not free from difficulty. We will, however,
assume for the sake of argument that as wife of Madhua
Kasturi might be divested of her interest on her remarriage
with Lekhraj. It is plain, however, in this case that the
dispute arises over the property of Karua and qua Karuna’s
property, Kasturi claimed inheritance not as a widow of her
husband Madhua but as the mother of Karua. The Deputy
Director off Consolidation seemed to think that the bar of
inheritance would apply to a mother as such as to a widow
and on this ground he refused to accept the claim of the
appellant. Learned counsel for the respondents supported
the stand taken by the Deputy Director of Consolidation. We
are, however, unable to agree with the view taken by the
Deputy Director of Consolidation which appears to be
contrary to the written text of the Hindu Law. Mulla in
his ’Hindu Law’, 14th Edn, while describing the incidents
of a mother regarding inheritance under clause (iii) ob-
served at p. 116 as follows:
"(iii) Unchastity and remarriage---Unchastity of a
mother is no bar to her succeeding as heir to her son, nor
does remarriage constitute any such bar."
A large number of authorities have been cited in support
of this view. We find ourselves entirely in agreement with
this view. Our attention has not been invited to any text of
the Hindu Law under which a mother could be divested of
her interest in the property either on the ground of unchas-
tity or re-marriage. We feel that the application of bar
of inheritance to the Hindu widow is based on the special
and peculiar, sacred and spiritual relationship of the wife
and the husband. After the marriage, the wife becomes an
absolute partner and an integral part of her husband and the
principle on which she is excluded from inheritance on
re-marriage is that when she relinquishes her link with her
husband even though he is dead and enters a new family, she
is not entitled to retain the property inherited by her.
The same, however, cannot be said of a mother. The mother is
in an absolutely different position and that is why the
Hindu Law did not provide that even the mother would be
disinherited if the remarried.
In these circumstances we are satisfied that the view of
the Deputy Director of Consolidation is legally erroneous.
The High Court erred in not interfering with it even
though a pure question of law was involved and has failed to
exercise jurisdiction vested in it by law. As the case is
a very old one and does not require any further investiga-
tion, we do not propose to remand the case to the High
Court.
For these reasons, therefore, the appeal is allowed, the
orders of the High Court and the Deputy Director of Consoli-
dation are set aside, and the order of the Settlement
Officer directing the mutation of the name of Kasturi is
restored. In the circumstances of this case, there will be
no order as to costs.
M.R. Appeal
allowed.
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