KISHORI BALA MONDAL v. TRIBHANGA MONDAL — 1980 DIGILAW 322 (CAL)

D. C. CHAKRAVORTI, J. ( 1 ) THIS appeal is from the judgment and decree passed by the learned Subordinate Judge at Asansol whereby the judgment and decree passed by the learned Munsif, 1st Court at Asansol were modified. ( 2 ) SM. Kishori Bala Mondal, the appellant, instituted against the respondents a title suit praying for a declaration of her title to the suit property and for order of perpetual injunction restraining the respondents from interfering with her possession. ( 3 ) THE facts relevant for purpose of this appeal are as follows: the suit land originally belonged to one Krishna Majhi who died about 42/43 years ago leaving his second wife Rati Bala as his sole heiress. The plaintiff Sm. Kishori Bala is the daughter of said Krishna Majhi by his second wife said Rati Bala. The first wife of Krishna Majhi pre-deceased him. On the death of Rati Bala, according to the plaintiff, the latter as the sole heiress inherited the suit property and has since then been possessing the same. Krishna Majhi had another daughter named Sasthibala by his first wife. Krishna Majhi died before the Hindu Succession Act came into force and Rati Bala died after the said Act came into force. On the death of Rati Bala her interest in the suit property devolved on her only daughter Kishori Bala, the plaintiff. The said Sasthibala or her sons and daughters who are defendants had neither any title to nor possession in the suit property or any part thereof. As the defendants were threatening the plaintiff with dispossession, the present suit had to be brought. ( 4 ) THE defendant's case is that both Rati Bala and Sasthibala used to possess all the properties left by Krishna Majhi and from after the death of Sasthibala the defendants have been possessing almost half of the suit property as her heirs. ( 5 ) THE learned Munsif declared plaintiff's title to the suit land and restrained the defendants permanently from interfering with her possession of suit land excepting the suit tank recorded in plot No. 925/1101. He, however, dismissed the plaintiff's prayer for permanent injunction in respect of the said tank. ( 6 ) ON appeal the learned Subordinate Judge modified the Judgment and decree of the learned Munsif. He, however, dismissed the plaintiff's prayer for permanent injunction in respect of the said tank. ( 6 ) ON appeal the learned Subordinate Judge modified the Judgment and decree of the learned Munsif. The learned Subordinate Judge declared plaintiff's eight anna share and not 16 anna share as declared by the learned Munsif. The learned Subordinate Judge also disallowed the plaintiff's prayer for permanent injunction. ( 7 ) THE only question that came up for determination before the learned Subordinate Judge is whether on the death of Ratibala the plaintiff alone or the plaintiff along with the defendants became entitled to the property left by Ratibala which she in her turn got from her husband as his sole heiress. Admittedly, the legal position is that when Krishna Majhi died his property devolved on Ratibala who was his sole heiress under the Hindu Law which was in force at the time of the death of Krishna Majhi. Further, there is no dispute regarding the fact that when Ratibala died the Hindu Succession Act, 1956, already came into operation. There is further no dispute regarding the legal position that in view of the provisions of S. 14 of the Hindu Succession Act, 1956, Ratibala came to have absolute ownership in the suit property in which, before the Hindu Succession Act came into force, she had, according to old Hindu law, a limited interest or in other words widow's estate. On whom the property left by Ratibala would devolve is the question before me. In determining that question the provisions of S. 15 and 16 of the Hindu Succession Act have to be applied. Section 15 of the said Act is as follows: ?15 (1) - The property of a female Hindu dying intestate shall devolve according to the rules set out in S. 16 - (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) Secondly, upon the heirs of the husband; (c) Thirdly, upon the mother and father; (d) Fourthly, upon the heirs of the father; and (e) Lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-s. (1) - (a)Any property inherited by a female Hindu from her father or mother 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-s. (1) in the order specific therein but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband 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-s. (1) in the order specified therein but upon the heirs of the husband. ? ( 8 ) AS a reference to the provisions of S. 16 would also be necessary, I consider it proper to set out the provisions of S. 16 of the said Act hereunder: ?16. The order of succession among the heirs referred to S. 15 shall be and the distribution of the intestate's property among those heir shall take place according to the following Rules, namely: - rule 1 - Among the heirs specified in sub-s. (1) of S. 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2 - If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3 - The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (c) of sub-s. (1) and sub-s. (2) of S. 15 shall be in the same order and according to the same rules as would have applied if the property 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. ? ? ( 9 ) A perusal of the provisions of S. 16 would show that according to the provisions of Rule 1 of S. 16 among the heirs specified in any succeeding entry, and those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. When this law is applied to the facts of the present case there is no escape from the conclusion that the property left by Ratibala would devolve on her daughter who is the plaintiff Kishori Bala because the daughter is included in the first entry, namely, clause (a) of sub-s (1) of S. 15. Thus, she will exclude those who were mentioned in all succeeding entries namely, (b), (c), (d) and (e) of sub-s. (1) of S. 15. Clause (a) of sub-s. (2) of S. 15 provides that property inherited by a female Hindu from her father or mother shall devolve on the death of such female Hindu and in the absence of any son or daughter of the deceased, not upon the other heirs referred to in sub-s. (1) of S. 15 in the order specified therein but on the heirs of the father. This has no application to the present case inasmuch as the property which Ratibala got she got from her husband by way of inheritance. On another ground also this has no application as Ratibala died leaving daughter. According to the provisions of Clause (b) of sub-s. (2) of S. 15 any property inherited by a female Hindu from her husband or from her father-in-law shall devolve in the absence of any son or daughter of the deceased, not upon the other heirs referred to in sub-s. (1) in the order specified therein but on the heirs of the husband. This provision has no application to the facts of the present case inasmuch as Ratibala died leaving a daughter and that daughter according to the provisions of Clause (a) of sub-s. (1) of S. 15 will inherit the property left by her mother Ratibala. In this view of the matter the defendants would be wholly excluded from inheritance by the plaintiff. The Court of Appeal below to my mind took a wrong view of the law in this regard. ( 10 ) MR. In this view of the matter the defendants would be wholly excluded from inheritance by the plaintiff. The Court of Appeal below to my mind took a wrong view of the law in this regard. ( 10 ) MR. Tarun Chatterjee, the learned lawyer appearing for the respondents contended that in view of the fact that the words ?of the deceased? appear in both clauses (a) and (b) of sub-s. (2) of S. 15 but are omitted from the provisions of clause (a) of sub-s. (1) of S. 15, the words ?sons and daughters? appearing in clause (a) of Sub-s. (1) of S. 15 would of necessity mean the sons and daughters of the husband of Ratibala and not sons or daughters of Ratibala alone. In support of this view Mr. Chatterjee relies on the decision of Ram Katori v. Prakashwati which was rendered by a Division Bench of the Allahabad High Court and reported in 1968 ALJ 484: ILR (1968) 1. All 697. The same question as is awaiting determination in the present appeal arose in that case and the learned single Judge before whom the matter came up referred the matter to a larger Bench in view of the importance of the question involved. Accordingly, that case was heard by Gupta and Katju JJ. As no one appeared on behalf of the respondent before the learned Judges, on being requested by their Lordship Mr. Jagdish Swarup, a senior Advocate of the said Court appeared as amicus curiae. According to the learned Judges the expression ?in the absence of any son or daughter of the deceased? occurs in both the clauses of S. 15 (2) it is manifest that the expression ?any son or daughter? as used in the two clauses refers to the son or daughter of the deceased Hindu female and not to the children of the deceased female's husband by a pre-deceased wife. The learned Judges took the view that the expression ?the sons and daughters? appearing in clause (a) of sub-s. (1) of S. 15 would include sons and daughters of the husband of the deceased female Hindu and not of the deceased female Hindu alone. The learned Judges took the view that the expression ?the sons and daughters? appearing in clause (a) of sub-s. (1) of S. 15 would include sons and daughters of the husband of the deceased female Hindu and not of the deceased female Hindu alone. The following passage quoted from that decision, would clearly indicate the reasons advanced by the learned Judges for so holding: ?the words used in S. 15 (1) (a) are 'sons and daughters' and not 'son or daughter of the deceased'. The legislature has obviously made this distinction to bring all the children of the deceased husband of the female Hindu within the ambit of the rule laid down in S. 15 (1) (a ). It could be said the expression 'sons and daughters' as used in S. 15 (1) (a) does not refer only to the sons and daughters of a female Hindu dying intestate but also includes the sons and daughters of her deceased husband. The legislature by deleting the words 'of the deceased' in S. 15 (1) (a) has protected the interest of the children of the husband of a Hindu female dying intestate, particularly, in those cases where the female had inherited the property from her husband and not from her father or mother. If that had not been so, the rule would have been patently unfair to the children of the husband of the Hindu female from his pre-deceased wife or even a co wife. Construing the expression 'sons and daughters' in S. 15 (1) (a) in view of the corresponding words used in. 15 (2) clauses (a) an (b), the conclusion is irresistible that the sons and daughters as indicated in S. 15 (1) (a) would also include the children of the husband of pre-deceased wife. ? ( 11 ) WITH due difference to the learned Judges I find it difficult to accept the view expressed by them as aforesaid. I beg mot respectfully to differ from the learned Judges. Regard being had to the relevant rule of interpretation of Statutes I cannot but hold that the expression ?sons and daughters? appearing in S. 15 (1) (a) can only mean sons and daughters of the female Hindu dying intestate and it cannot by any stretch of imagination include sons and daughters of the husband of that female Hindu. Regard being had to the relevant rule of interpretation of Statutes I cannot but hold that the expression ?sons and daughters? appearing in S. 15 (1) (a) can only mean sons and daughters of the female Hindu dying intestate and it cannot by any stretch of imagination include sons and daughters of the husband of that female Hindu. The interpretation put by the learned Judges is only possible if we import a few words into the text of clause (a) of S. 15 (1 ). The words ?of her husband? shall have to be read after the words ?sons and daughters? appearing in clause (a) of S. 15 (1) before S. 15 (1) (a) may be said to include sons and daughters of the husband not by that female Hindu but by any other wife of the husband. The learned Judges also spoke of the deletion of the words ?of the deceased? from S. 15 (1) (a ). It is not a case of deletion of words from the original text of S. 15 (1) (a ). It is a case where the words ?of the deceased? were absent from the text from the time when the Statute in question was initially enacted. There is therefore no meaning in saying that the legislature did intend to effect any change by deletion of those words from the original Text. ( 12 ) IF the languages or text of the statute be clear and unambiguous, the Court has to give effect to what is conveyed by such clear and unambiguous language or text even though the legislature might not have contemplated or intended the consequences that would follow. In such cases there is no question of the application of any special rule of interpretation. In cases where the words used in the Statute admit of two meanings the question of interpretation of construction of the Statute arises. Thus, it is only in cases where statute there is ambiguity the Court has to resort to rules of interpretation. In such cases, the acknowledged rule of interpretation is that the text of the Statute should be taken to convey the intention of the legislature as expressed in the text itself. The Courts ought not to speculate on the intention of the legislature. It ought not to take into consideration what would have been or what should have been enacted by the legislature. The Courts ought not to speculate on the intention of the legislature. It ought not to take into consideration what would have been or what should have been enacted by the legislature. It should ascertain the intention of the legislature from the language or the text used. It is also an acknowledged principle of interpretation that in construing a particular provision contained in a Statute the Court should adhere to the grammatical and ordinary sense of the words used except in cases where such course would lead to some ambiguity, repugnance or inconsistency with the rest of the provisions contained in that Statute. In cases where there is absurdity or repugnance it would be open to the Court to modify the grammatical and ordinary sense of the words used but only that much of modification is permissible as would avoid absurdity, in consistency or repugnance and no further. Regard being had to the acknowledged rules of interpretation of Statute referred to above it would be found that the text used in S. 15 (1) taken in its grammatical sense would mean that the property of a female Hindu dying intestate shall devolve, according to the rules set out in S. 16, first on her sons and daughters (including the children of any pre deceased son or daughter) and her husband. There is not the least ambiguity or repugnance which may call for a modification of the ordinary grammatical sense conveyed by the text of S. 15 (1 ). What was mainly responsible for the view taken in the case of Ram Katori v. Prakashwati (supra) is the absence of the words ?of the deceased? after the words ? upon the sons and daughters? in S. 15 (1) and the inclusion of the words ?of the deceased? after the words ?any son or daughter? in S. 15 (2) Clauses (a) and (b ). The absence of the words ?of the deceased? in S. 15 (1) can in no way justify the view that what was meant to be provided by S. 15 (1) is that the property of a female Hindu dying intestate shall devolve firstly upon the sons and daughters of her husband. I have already pointed out that before such a view can be taken some words which are not there in S. 15 (1) are to be imported into that sub-section. That is not warranted. I have already pointed out that before such a view can be taken some words which are not there in S. 15 (1) are to be imported into that sub-section. That is not warranted. Further the absence of the words ?of the deceased? in S. 15 (1) and their inclusion in Clauses (a) and (b) of S. 15 (2) can be reasonably explained away. At the commencement of S. 15 (1) only the person regarding devolution of whose property provision is made therein was mentioned and non-else. Accordingly, while providing that the property would devolve upon the sons and daughters, it was not at all necessary to add the words ?of the deceased? after the words ?sons and daughters?, while the provisions of clauses (a) and (b) of S. 15 (2) would show that in each of them as many as three persons are referred to before the words ?any son or daughter of the deceased? occur. In clause (a) a female Hindu, her father or mother are mentioned and in clause (b) a female Hindu, her husband or her father-in-law are referred to. It is because of this that it was necessary to add the words ?of the deceased? after the words ?any son or daughter? appearing in clauses (a) and (b ). When three persons are referred to it is necessary to specify on whose son or daughter the property will devolve. Further the view taken in the case of Ram Katori (supra) would lead to anomaly. Section 15 (1) contains the words ?upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband?. That being the grammatical construction if we are to read the words ?of the husband? after the words ?sons and daughters? we have to read the same expression namely, ?of the husband? after the word ?husband? appearing in S. 15 (1 ). That leads to absurdity. ( 13 ) THE learned Judges in the case of Ram Katori (supra) also support the view taken by them on the ground that unless such a view is taken ?the rule would have been patently unfair to the children of the husband of the female Hindu from his pre-deceased wife or even a co-wife. This reasoning doe not at all appeal to me. This reasoning doe not at all appeal to me. When there is no ambiguity, repugnance or inconsistency and the words used in a Statute are clear and unambiguous, the courts of law while applying rules contained in that Statute cannot either add to or detract from the particular text appearing in the Statute for the purpose of avoiding supposed injustice. Interpreting law is different from making law. Even if the application of a rule of law which is couched in clear and unambiguous language causes injustice a Court of law whose function is only to interpret and not to make law cannot refrain from applying that rule and replace it by a rule of its own liking which according to them would avoid any injustice being done. Furthermore, in the present case, it cannot be said that when according to S. 15 (1) (a) the property of a female Hindu dying intestate would devolve firstly on sons and daughters of hers and on her husband, the rule is unjust because the sons and daughters of the husband by a co-wife would be deprived of any share in the property. By virtue of S. 14 the limited interest that Ratibala had in the property after her husband's death ripened into an absolute interest on the passing of the Hindu Succession Act and there is no reason why the rule in S. 15 (1) (a) should be considered unjust only because the property of Ratibala on her dying intestate would devolve on her sons and daughters and not on sons and daughters by the other wife of her husband. ( 14 ) AFTER the conclusion of the arguments when Mr. Chatterjee found it difficult to dislodge me from the view taken by me as aforesaid, he pointed out that there was a decision of a single Judge on the Punjab and Haryana High Court which is in the line of my decision. That decision was rendered in Gurnam Singh v. Sm. Ass Kaur and Ors. AIR 1977 P and H 103. There the learned Judge differed from the view taken in Ram Katori's case (supra) as His Lordship was of the view that the exclusion of the words ?of the deceased? from clause (a) of S. 15 (1) was only a matter of convenience. Ass Kaur and Ors. AIR 1977 P and H 103. There the learned Judge differed from the view taken in Ram Katori's case (supra) as His Lordship was of the view that the exclusion of the words ?of the deceased? from clause (a) of S. 15 (1) was only a matter of convenience. They were excluded, according to the learned Judge, for avoiding repetition of those words in the other clauses of sub-s (1) of S. 15. His Lordship further pointed out that if those words had not been used in clauses (a) and (b) of sub-s. (2) of S. 15, there would have been a likelihood of confusion. Accordingly, the learned Judge dissented from the view taken in Ram Katori's case (supra ). ( 15 ) IN Mallappa Fakirappa Sanna Naga Shetti and Ors. v. Shivappa and Anr. AIR 1962 Mys 140 a Division Bench of the Mysore High Court took the view that the word ?son? in S. 15 (1) (a) could not properly be understood to include a step son of the deceased. In the absence of any definition or explanation to the effect that the word ?son? would also include a step son, that word should be given its natural meaning, if so, a son of deceased female would mean a male issue of the body of that deceased female. This decision also supports the view taken by me. ( 16 ) THE decision in Rema Ananda Patil v. Appa Bima Redeke and Ors. AIR 1969 Bom 205 also in a way supports the view taken by me. According to that decision a son of a female Hindu by the first husband of a female Hindu is entitled to succeed on her death to the property inherited by her as sole heirs of her second husband in preference to the nephews and grand nephews of her second husband under S. 15 of the Hindu Succession Act, 1956. ( 17 ) NO other question is involved in this appeal. ( 18 ) IN view of what is stated above, the appeal ought to be allowed. The appeal is allowed and the judgment and decree of the Court of appeal below are set aside and those of the learned Munsiff are affirmed. There will be no order for costs. Appeal allowed.