{"id":205490,"date":"1991-10-09T00:00:00","date_gmt":"1991-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-balwant-singh-ors-on-9-october-1991"},"modified":"2018-05-04T05:32:34","modified_gmt":"2018-05-04T00:02:34","slug":"state-of-punjab-vs-balwant-singh-ors-on-9-october-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-balwant-singh-ors-on-9-october-1991","title":{"rendered":"State Of Punjab vs Balwant Singh & Ors on 9 October, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Punjab vs Balwant Singh & Ors on 9 October, 1991<\/div>\n
Equivalent citations: 1992 AIR 2214, \t\t 1991 SCR (3) 928<\/div>\n
Author: M Kania<\/div>\n
Bench: Kania, M.H.<\/div>\n
           PETITIONER:\nSTATE OF PUNJAB\n\n\tVs.\n\nRESPONDENT:\nBALWANT SINGH & ORS.\n\nDATE OF JUDGMENT09\/10\/1991\n\nBENCH:\nKANIA, M.H.\nBENCH:\nKANIA, M.H.\nSAWANT, P.B.\n\nCITATION:\n 1992 AIR 2214\t\t  1991 SCR  (3) 928\n 1991 SCC  (4) 368\t  1991 SCALE  (2)557\n\n\nACT:\nHindu Succession Act, 1956:\n     Section  15(1)  and (2)--Hindu female  dying  intestate\nleaving\t behind property derived from her  husband---Devolu-\ntion  of-Object of sub-section (2)(h)--Not to eliminate\t the\nother  heirs under sub-section (1) and not to  exclude\tthem\nfrom inheritance altogether.\n\tSection\t 29   Property escheated  to  Government  on\nfailure\t of  heirs--Only  when there  is  total\t absence  of\nheirs---Availability of heirs under sub) section (1) or\t (2)\nof Section 15--Whether precludes escheat.\n\n\n\nHEADNOTE:\n     One  Smt. 'M' inherited from her husband certain  agri-\ncultural lands. Some of the lands were under mortgage and in\nthe  possession\t of defendants 2 to 6.\tShe  died  intestate\nafter  the  Hindu Succession Act, 1956 came into  force.  As\nthere  was  no\their entitled to succeed  to  her  property,\nmutation was sanctioned in favour of the State. The grandson\nof  her brother claiming to be her legal heir filed  a\tsuit\nfor possession of the property and for a declaration that he\nwas  entitled to redeem the mortgaged property from  defend-\nants  2 to 6.'The suit was resisted by the First  Defendant,\nviz. the State on the ground that the intestate had left  no\nheir  to succeed and the mutation effected in favour of\t the\nState was valid. Defendants 2 to 6 contended that the  right\nto  redeem  the\t mortgage had extinguished,  and  they\thave\nbecome the owners of the property as they were in possession\nfor more than sixty years.\n     The  Trial\t Court dismissed the suit holding  that\t the\nplaintiff was not entitled to succeed to the property of the\ndeceased since the property was inherited from her  husband.\nAs  regards  the mortgage, it was left open  to\t be  decided\nlater as agreed to by the parties.\n     Plaintiff\tpreferred an appeal and the  District  Judge\ndismissed the same. On a second appeal preferred by him, the\nHigh Court decreed the\n459\nsuit  for  possession even against defendants 2\t to  6.\t The\nState  as well as the defendants 2 to 6 have  preferred\t the\npresent appeals by special leave.\n    The\t appellant-State  contended that  the  plaintiff-Re-\nspondent was not a qualified heir under the Hindu Succession\nAct and hence it was a case of failure of heirs resulting in\nthe devolution of estate on the Government. The other appel-\nlants  (Defendants  2 to 6) contended that  the\t High  Court\nought  not  have  decreed the suit against  them  since\t the\nplaintiff-Respondent's right to redeem the mortgage was\t not\nadjudged  by the trial court and by agreement  the  question\nwas expressly left open.\n    Dismissing the appeal preferred by the State and  allow-\ning the appeal of defendants 2 to 6, this Court,\n    HELD:  1.  The property is escheated to  the  Government\nwhen  an intestate has left no heir qualified to succeed  to\nhis  or\t her  property. The property shall  devolve  on\t the\nGovernment  and the Government shall take the property\tsub-\nject to all the obligations and liabilities of the property.\nIt  is only in the event of the deceased leaving  behind  no\nheir  to succeed, the State steps in to take  the  property.\nThe State does not take the property as a rival or preferen-\ntial  heir of the deceased but as the Lord paramount of\t the\nwhole soil of the country. [464 B,C]\n    2.\tSection 29 of the Hindu Succession Act,\t 1956  shall\nnot  operate  in favour of the State if there is  any  other\nheir  of the intestate. Indeed, Section 29 itself  indicates\nthat  there  must be failure of heirs.\t'Failure'  of  heirs\nmeans the total absence of heirs to the intestate. A  female\nHindu  being the full owner of the property becomes a  fresh\nstock of descend. If she leaves behind any heir either under\nsub-section (1) or under sub-section (2) of Section 15,\t her\nproperty cannot be escheated. [464 E,F]\nHalsbury's  Laws  of England, 4th Edn. Vol.  17\t para  1439;\nreferred to.\n    3.1.  Sub-Section  (2) of Section 15, intended  only  to\nchange\tthe order of succession specified under\t sub-section\n(1) and not to eliminate the other classes of heirs. Section\n15(2) came to be incorporated on the recommendations of\t the\nJoint Committee of the two Houses of Parliament. The  report\nof  the\t Joint Committee which was  accepted  by  Parliament\nindicates  that this sub-section was intended to revise\t the\norder of succession among the heirs to a Hindu female and to\nprevent\t the properties from passing into the hands to\tper-\nsons to whom justice would\n460\ndemand\tthat they should not pass. That means  the  property\nshould go in the first instance to the heirs of the  husband\nor to the source from where it came. [464 F, H, 465 C]\n    3.2.  Sub-section (2)(b) of Section 15  emphasises\tthat\nthe  property  of the intestate shall not devolve  upon\t the\nheirs referred to in sub-section (1) in the order  specified\nthereunder but upon heirs of the husband. The object is\t not\nto  eliminate the other heirs under sub-sectiOn (1) and\t not\nto  exclude  them from inheritance altogether. There  is  no\njustice in such a construction of Section 15. The Parliament\ncould not have intended that result. [465 F-G.]\nBhajya v. Gopikabai and Anr,<\/a> [1978] 3 SCR 561, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos.  851  &
\n4125 of 1991.\n<\/p>\n
    From  the  Judgment and Order dated\t 15.12.1982  of\t the
\nPunjab & Haryana High Court in R.S.A. No. 754 of 1974.
\n    U.R.  Lalit, M.R. Sharma, A.S. Sohal, G.K. Bansal,\tAnil
\nNauriya,  K.L.\tHathi, Ms. Anjna Sharma, N.A.  Siddiqui\t and
\nMrs. Hemantika Wahi for the appearing parties.
\nThe Judgment of the Court was delivered by
\n    K.\tJAGANNATHA SHETTY, J. These are\t defendants’  appeal
\nand special leave petition arising out of a suit for posses-
\nsion  brought by Balwant Singh – the plaintiff. In the\tSpe-
\ncial  Leave Petition, we condone the delay and grant  leave.
\nThe  suit was dismissed by the Court of first  instance\t and
\nthe  dismissal was affirmed by the appellate court  but\t de-
\ncreed by the High Court in the second appeal.\n<\/p>\n
     The  issue\t raised\t in the appeal\tis  of\tconsiderable
\nimportance and it relates to the construction of Section  15
\nof  the\t Hindu Succession Act, 1956 (‘the  Act’).  One\tSmt.
\nMahan Kaur, wife of Jaimal Singh inherited from her  husband
\ncertain\t agricultural  land measuring 110 kanals  12  marlas
\nsituate\t in village Hamhal, Jakhe-Pal in  Sangrur  District.
\nSome of the lands were under mortgage and are in  possession
\nof  defendants 2 to 6. After coming into force of  the\tAct,
\nMahan Kaur died intestate. On being informed that there\t was
\nno  heir  entitled to succeed to her property,\tthe  Revenue
\nAssistant  Collector  sanctioned mutation in favour  of\t the
\nState.\tBalwant Singh claiming to be a legal heir  of  Mahan
\nKaur brought the suit out of which the present appeal arise.
\nThe suit was for possession of the
\n461<\/span>
\nproperty  of the deceased and also for a declaration  decree
\nthat  he was entitled to redeem the mortgaged property\tfrom
\ndefendants 2 to 6. The suit was resisted by the State on the
\nground that the intestate has left behind no heir to succeed
\nand the mutation effected in favour of the State was  valid.
\nDefendants  2  to 6 contended that the right to\t redeem\t the
\nmortgage  has  been extinguished and they  have\t become\t the
\nowners of the property by being in possession for more\tthan
\nsixty years.\n<\/p>\n
   The trial court held that the plaintiff was not  entitled
\nto succeed to the property of the deceased since the proper-
\nty  was\t inherited from her husband. The issue\trelating  to
\nsubsistance or otherwise of the mortgage was left open to be
\ndecided\t later as agreed upon by counsel for both  the\tpar-
\nties. The suit was accordingly dismissed by the trial court.
\nThe  plaintiffs appeal against the decree was  dismissed  by
\nthe District Judge, Sangrur. The second appeal preferred  by
\nthe plaintiff was, however, accepted by the High Court.\t The
\nHigh Court decreed the suit for possession even against\t de-
\nfendants 2 to 6. That part of the decree has been challenged
\nby  defendants 2 to 6 in S.L.P. (Civil) No. 13923  of  1985.
\nTheir  grievance  is that the High Court ought not  to\thave
\ndecreed the suit against them since the plaintiff’s right to
\nredeem\tthe mortgage was not adjudicated by the trial  court
\nand by agreement, the question was expressly left open.\t The
\nsubmission  of the defendants 2 to 6 appears to\t be  correct
\nand the decree against them made by the High Court is plain-
\nly untenable. There is indeed no controversy on that  aspect
\nof the matter.\n<\/p>\n
\t L
\n   It  is not in dispute that Mahan Kaur inherited the\tsuit
\nproperty  from\ther husband. She had no issue and  she\tdied
\nintestate.  It is also not in dispute that there is no\their
\nfrom her husband side entitled to succeed to  the  property.
\nThe  plaintiff\tis grandson of the brother  of\tMahan  Kaur.
\nAccording  to him he is entitled to get the property of\t the
\ndeceased. The case of the State is that the plaintiff is not
\nher qualified heir under the Act and it is a case of failure
\nof  heirs resulting in the devolution of the estate  on\t the
\nGovernment.\n<\/p>\n
    The\t issue\traised\tin the case turns on  the  rules  of
\nsuccession  to a property of a female dying  intestate.\t The
\nmode  of succession has been prescribed under Section 15  of
\nthe  Act.  Section 15 has to be read alongwith\tSection\t 16.
\nThey  in  turn have to be read alongwith the  provisions  of
\nSection\t 8. The property devolving upon the State  has\tbeen
\nprovided under Section 29 of the Act.\n<\/p>\n
Section 15 is important and it may be read in full:\n<\/p>\n
462<\/span><\/p>\n
    “15.  General rules of succession in the case of  female
\nHindus-\t (1) The property of a female Hindu dying  intestate
\nshall devolve according to the rules set out in section 16 –\n<\/p>\n
\t      (a)  firstly,  upon  the\tsons  and  daughters
\n\t      (including  the children of  any\tpre-deceased
\n\t      son or daughter) and the husband;\n<\/p><\/blockquote>\n
\t      (b) secondly, upon the heirs of the husband;\n<\/p><\/blockquote>\n
\t      (c) thirdly, upon the mother and father;\n<\/p><\/blockquote>\n
\t      (d)  fourthly, upon the heirs of\tthe  father;
\n\t      and\n<\/p><\/blockquote>\n
\t      (e) lastly upon the heirs of the mother.
\n\t      (2)  Notwithstanding  anything  contained\t  in
\n\t      sub-section (1) –\n<\/p><\/blockquote>\n
\t      (a)  any property inherited by a female  Hindu
\n\t      from  her father or mother shall\tdevolve,  in
\n\t      the  absence  of any son or  daughter  of\t the
\n\t      deceased\t(including the children of any\tpre-
\n\t      deceased son or daughter), not upon the  other
\n\t      heirs  referred  to in subsection (1)  in\t the
\n\t      order specified therein, but upon the heirs of
\n\t      the father; and\n<\/p><\/blockquote>\n
\t      (b)  any property inherited by a female  Hindu
\n\t      from  her\t husband or from  her  father-in-law
\n\t      shall  devolve, in the absence of any  son  or
\n\t      daughter of the deceased (including the  chil-
\n\t      dren of any pre-deceased son or daughter)\t not
\n\t      upon  the other heirs referred to in  sub-sec-
\n\t      tion  (1) in the order specified therein,\t but
\n\t      upon the heirs of the husband.”<\/p><\/blockquote>\n
    Sub-section\t (1)  of Section 15 groups the\theirs  of  a
\nfemale intestate into five categories and they are specified
\nunder clauses (a) to (e). As per Sections 16 Rule 1 those in
\none  clause  shall be preferred to those in  the  succeeding
\nclauses\t and  those included in the same clause\t shall\ttake
\nsimultaneously. Sub- section (2) of Section 15 begins with a
\nnon-obstante  clause providing that the order of  succession
\nis not that prescribed under sub-section (1) of Section\t 15.
\nIt carves out two exceptions to the general order of succes-
\nsion  provided\tunder sub-section (1). The  first  exception
\nrelates to the property inherited by a female Hindu from her
\nfather\tor mother. That property shall devolve, in  the\t ab-
\nsence of any son or daughter of the deceased (including\t the
\nchildren of the pre-deceased son or daughter), not upon\t the
\nother  heirs  referred to in sub-section (1)  in  the  order
\nspecified
\n463<\/span>
\ntherein, but upon the heirs of the father. The second excep-
\ntion  is in relation to the property inherited by  a  female
\nHindu  from  her  husband or from  her\tfather-in-law.\tThat
\nproperty shall devolve, in the absence of any son or  daugh-
\nter  of\t the deceased (including the children  of  the\tpre-
\ndeceased son or daughter) not upon the other heirs  referred
\nto  under sub-section (1) in the order specified  thereunder
\nbut upon the heirs of the husband.\n<\/p>\n
    The\t process of identifying the heirs of  the  intestate
\nunder  sub-section (2) of Section 15 has been  explained  in
\nBhajya\tv. Gopikabai and<\/a> anr. [1978] 3 SCR 561.\t There\tthis
\nCourt observed that the rule under which the property of the
\nintestate would devolve is regulated by Rule 3 of Section 16
\nof the Act. Rule 3 of Section 16 provides that “the  devolu-
\ntion of the property of the intestate on the heirs  referred
\nto  in\tclauses (b), (d) and (e) of sub-section (1)  and  in
\nsub-section (2) of Section 15 shall be in the same order and
\naccording  to  the same rules as would have applied  if\t the
\nproperty  had been the father’s or the mother’s or the\thus-
\nband’s\tas the case may be, and such person had died  intes-
\ntate  in respect thereof immediately after  the\t intestate’s
\ndeath”.\t This  rule  creates a fiction for  the\t purpose  of
\nascertaining  the order of devolution. It has to be  assumed
\nthat  the husband had died intestate immediately  after\t the
\nfemale intestate’s death. Bearing in mind this fiction,\t one
\nhas to go to the Schedule under Section 8 of the Act to find
\nout the heirs of the husband who are entitled to succeed  to
\nthe property of the intestate.\n<\/p>\n
    The High Court has stated that the property inherited by
\nMahan Kaur from her husband became her absolute property  in
\nview of the provisions of Section 14 and the property  would
\ndevolve upon the heirs specified under Section 15(1). It has
\nalso  observed that the plaintiff would be entitled to\tsuc-
\nceed  to the estate of Mahan Kaur even under Section 15\t (2)
\nbeing  an heir of her father under Entry (d) of\t sub-section
\n(1)  of\t Section 15 of the Act. In our opinion,\t both  these
\nreasons are basically faulty and cannot be accepted.
\n    Counsel  for the State argued that the property  of\t the
\nintestate has to be dealt with only under sub-section (2) of
\nSection 15, and since there is no heir in that category\t the
\nproperty shall devolve on the Government under Section 29.\n<\/p>\n
\t      “Section 29 provides as follows:
\n\t      “ESCHEAT
\n\t      464<\/span>
\n\t      “Failure of heirs- If an intestate has no heir
\n\t      qualified to succeed to his or her property in
\n\t      accordance  with the provisions of  this\tAct,
\n\t      such property shall devolve on the Government:
\n\t      and  the\tGovernment shall take  the  property
\n\t      subject to all the obligations and liabilities
\n\t      to which an heir would have been subject.”<\/p><\/blockquote>\n
    The\t property  is escheated to the\tGovernment  when  an
\nintestate  has left no heir qualified to succeed to  his  or
\nher  property. The property shall devolve on the  Government
\nand  the Government shall take the property subject  to\t all
\nthe obligations and liabilities of the property. It is\tonly
\nin  the\t event\tof the deceased leaving behind\tno  heir  to
\nsucceed, the State steps in take the property.
\n    The\t State\tdoes  not take the property as\ta  rival  or
\npreferential heir of the deceased but as the Lord  paramount
\nof  the\t whole soil of the country. In Halsburry’s  Laws  of
\nEngland, 4th ed. Vol. 17 para 1439 it is stated as follows:\n<\/p>\n
\t      “To whom land escheated – Escheat in the\tcase
\n\t      of  death\t intestate before 1926\twas  to\t the
\n\t      mesne lord is he could be found but, as  since
\n\t      1290  sub-infeudation has been  forbidden,  in
\n\t      the  great  majority  of cases  there  was  no
\n\t      record  of the mesne tenure, and\tthe  escheat
\n\t      was to the Crown as the lord paramount of\t the
\n\t      whole soil of the country.”<\/p><\/blockquote>\n
    Section 29, in our opinion, shall not operate in  favour
\nof  the State if there is any other heir of  the  intestate.
\nIndeed,\t Section  29  itself indicates that  there  must  be
\nfailure of heirs. ‘Failure’ of heirs means the total absence
\nof heirs to the intestate. It is important to remember\tthat
\nfemale Hindu being the full owner of the property becomes  a
\nfresh stock of descend. If she leaves behind any heir either
\nunder  sub-section (1) or under sub-section (2)\t of  Section
\n15, her property cannot be escheated.\n<\/p>\n
    Sub-section\t (2)  of  Section 15, in  our  opinion,\t was
\nintended  only to change the order of  succession  specified
\nunder sub-section (1) and not to eliminate the other classes
\nof  heirs. This view finds support from the  recommendations
\nof  the\t Joint Committee of two Houses of  Parliament  which
\nwent  into  the question of the Hindu Succession  Bill.\t The
\nHindu  Succession Bill 1954 as originally introduced in\t the
\nRajya  Sabha  did not contain any  clause  corresponding  to
\nsub-section (2) of Section 15. It came to be incorporated on
\nthe recommendations of the Joint Committee of the two Houses
\nof  Parliament. The reason given by the Joint  Committee  is
\nfound in Clause 17 of the Bill which reads as follows:\n<\/p>\n
465<\/span><\/p>\n
\t\t   “While  revising the order of  succession
\n\t      among the heirs to a  Hindu female, the  Joint
\n\t      Committee have provided that properties inher-
\n\t      ited  by\ther from her father reverts  to\t the
\n\t      family of the  father in the absence of  issue
\n\t      and  similarly  property inherited   from\t her
\n\t      husband or father-in-law reverts to the  heirs
\n\t      of  the  husband in the absence of  issue.  In
\n\t      the  opinion  of the Joint  Committee  such  a
\n\t      provision\t would\tprevent\t properties  passing
\n\t      into  the\t hands of persons  to  whom  justice
\n\t      would demand they should not pass.”<\/p><\/blockquote>\n
    The report of the Joint Committee which was accepted  by
\nParliament indicates that sub-section (2) of section 15\t was
\nintended  to revise the order of succession among the  heirs
\nto a Hindu female and to prevent the properties from passing
\ninto the hands of persons to whom justice would demand\tthat
\nthey  should not pass. That means the property should go  in
\nthe  first  instance to the heirs of the husband or  to\t the
\nsource from where it came.\n<\/p>\n
    In\tsupport\t of the contrary submission,  attention\t was
\ndrawn to a passage from Hindu Law by S.V. Gupte in which  it
\nis stated “that the heirs of the husband will take where the
\nproperty was inherited from the husband or from the  father-
\nin-law. The object is to eliminate the father and the  moth-
\ner,  the  heirs of the father, and the heirs of\t the  mother
\naltogether from succession where the property inherited\t was
\nfrom  the husband or the father-in-law and the deceased\t has
\nleft no son or daughter or any grandchild. The effect of the
\nclause\tis  not only to eliminate the three classes  of\t the
\nheirs, being those mentioned in clauses (c), (d) and (e)  to
\nsubsection  (1),  but to change the  order  of\tsuccession.”
\n(1981  Ed. Vol. 2 p. 522). We however, find it difficult  to
\nshare this view.’ It does not get support from the terms  of
\nsub-section (2) of Section 15. Sub-section (2)(b) emphasises
\nthat  the property of the intestate shall not  devolve\tupon
\nthe heirs referred to in sub-section (1) in the order speci-
\nfied  thereunder but upon heirs of the husband. The,  object
\nseems  to  be not to eliminate the other  heirs\t under\tsub-
\nsection\t (1) and not to exclude them from inheritance  alto-
\ngether.\t There is no justice in such a construction of\tSec-
\ntion 15. The Parliament could not have intended that result.
\n    In this view of the matter, we dismiss the Civil  Appeal
\nNo.  851  of  1991 preferred by the State but  not  for\t the
\nreasons stated by the High Court. We allow the appeal  aris-
\ning out of SLP (Civil) No. 13923 of 1985
\n466<\/span>
\nand  set aside that portion of the decree made by  the\tHigh
\nCourt  as against the defendants 2 to 6. The suit  filed  by
\nthe plaintiff as against defendants 2 to 6 stands dismissed.
\nThe  parties  may adjudicate elsewhere\tthe  subsistence  or
\notherwise of the mortgage in question.\n<\/p>\n
In the circumstances of the case, there will be no order  as
\nto costs.\n<\/p>\n
G.N.\t\t\t     CA No. 851\/91 dismissed and\n\t\t\t     CA No. 4125\/91 allowed.\n467<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Punjab vs Balwant Singh & Ors on 9 October, 1991 Equivalent citations: 1992 AIR 2214, 1991 SCR (3) 928 Author: M Kania Bench: Kania, M.H. PETITIONER: STATE OF PUNJAB Vs. RESPONDENT: BALWANT SINGH & ORS. DATE OF JUDGMENT09\/10\/1991 BENCH: KANIA, M.H. BENCH: KANIA, M.H. SAWANT, P.B. CITATION: 1992 AIR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-205490","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Punjab vs Balwant Singh & Ors on 9 October, 1991 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-balwant-singh-ors-on-9-october-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Punjab vs Balwant Singh & Ors on 9 October, 1991 - 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