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2013 DIGILAW 46 (MEG)

Pranab Kumar Deb v. Union of India

2013-11-15

PRAFULLA C.PANT, T.NANDAKUMAR SINGH

body2013
Judgment Prafulla C. Pant, CJ.:- By means of this writ petition, the writ petitioners have challenged vires of entry IV of class n heirs mentioned in the Schedule of Hindu Succession Act, 1956. It is further prayed that terms "deceased brother's son", "deceased brother's daughter", "deceased sister s son" and "deceased sister daughter" be taken to have been included in the entry H of class n of Schedule of the Hindu Succession Act, 1956. 2. Brief facts of the case are that the petitioners and respondent No. 4 are related by following pedigree :- Dr. Pulin Behari Deb (Died 11.4.1944). Sushma Prabodh Subodh Sudhir Sukumari (Daughter) Died in 1996 (Son) (Son) (Son) Died in 1986 (Died in 1984 Died in 2008 (Daughter Died in 200 XXX XXX XXX 3. As such, petitioners are nephews of respondent No. 4. Shyamal. Late Dr. Pulin Behari Deb who was ancestor of the petitioners and respondent No. 4 was a medical practitioner who left his properties after his death in Shillong. It is alleged by the petitioners that respondent No. 4 removed certain furnitures and articles from the rooms occupied by Subodh Chandra Deb (deceased) on which the petitioners served a notice dated 4th August, 2010 on respondent No. 4 to get back the furnitures to their original position. In response to the said notice, respondent No.4 sent a reply dated 17.08.2010 (Annexure II) stating that due to the death of Subodh Chandra Deb in the year 1984, the property of (L) Pulin Behari Deb, after the death of Smti. Konika Deb (widow of Subodh Chandra Deb) on 21.2.1997, devolved on surviving brother and sister namely, Sudhir Chandra Deb and Sukumari Dutta to exclude the nephew and nieces through another brother Probodh Chandra Deb. Section 9 of Hindu Succession Act, 1956 provides that among the class II heirs, first the relatives mentioned in the first entry are to be preferred to those mentioned in the second entry and those mentioned in the second entry are required to be preferred to those mentioned in the third entry and so on. It is pleaded in the writ petition that the classification between sons of pre-deceased brother and other brothers is unreasonable and arbitrary. It is pleaded in the writ petition that the classification between sons of pre-deceased brother and other brothers is unreasonable and arbitrary. It is further pleaded that the children of the pre-deceased brother should have been placed equally with the brothers and sisters in the same entry in the matters of intestate of succession of properties. Challenging the entry IV of class n on the ground of its being violative of article 14 of the Constitution of India, this writ petition was filed to set aside the entry IV of class II heirs in the Schedule of Hindu Succession Act, 1956 and to declare that "deceased brother's son", "deceased brother's daughter", "deceased sister s son", "deceased sister's daughter" are included in entry II of class II of heirs in the Schedule of Hindu Succession Act, 1956. 4. In the affidavit-in-opposition filed on behalf of respondent No.4, Shyamal Deb, the relationship between the parties (petitioners and respondent No.4) is not denied. However, it is stated that the writ petition suffers from delay and laches. It is further stated that the writ petition is hit by non-joinder of necessary parties. It is pleaded that there is no infirmity in the constitutional validity of the provisions of Hindu Succession Act, 1956. It is contended that source of classification between brothers and sons of deceased brothers is based on Shruti, Smriti and Customs of Hindu law. It is further stated that the codified Hindu Succession Law (Hindu Succession Act, 1956) aims at insuring a uniform civil code of personal law of Hindus removing the gender inequality in matters of inheritance. It is pleaded that the distinct characteristic of Bengal School (Dayabhaga) is that succession is governed by capacity for conferring spiritual benefits in Parvana Sradha as under:- "a) Pinda or an entire cake, called an undivided obligation which is offered to three immediate paternal ancestors and the three immediate maternal ancestors. The one making the offer of the pinda and the one receiving it become sapindas of one another. b) Pinda-lepas or remnants of the pinda which cling to the hand while mixing the ingredients of which the pindas are composed, called divided obligations and are offered to three paternal ancestors next above those to whom pindas are offered. The one making the offer of the pinda-lepas and the one receiving it become sakulyas of one another. b) Pinda-lepas or remnants of the pinda which cling to the hand while mixing the ingredients of which the pindas are composed, called divided obligations and are offered to three paternal ancestors next above those to whom pindas are offered. The one making the offer of the pinda-lepas and the one receiving it become sakulyas of one another. c) libations of water are offered to seven paternal ancestors next above those to whom pinda-lepas are offered. The one offering the libations of water and the one receiving it become samanodakas of one another." 5. It is also pleaded by the respondent No. 4 that the preferential succession is based on the above principles, and those who offer pinda to deceased are preferred to others. Among those who offer oblations to both the paternal and maternal ancestors are preferred to those who offer oblations only to paternal ancestors. And those who offer larger number of cakes of particular description are preferred to those who offer less number of cakes of the same description. As per the order of succession among Hindus governed by the Dayabhaga School prior to codification, the surviving brother of whole blood and the half blood were given preference to the deceased brother's sons simply because of their superiority in conferring spiritual benefits to the deceased over the son of the deceased brother. Lastly, it is pleaded in the counter affidavit of respondent No. 4 that the classification made in the Schedule of Hindu Succession Act, 1956 is reasonable and based on settled principles of Hindu law. Defending the constitutionality of the entries of class II of the Schedule of Hindu Succession Act, 1956, it has been pleaded that even otherwise in the realm of constitutional validity of law, there is presumption of its being constitutional unless the contrary is proved. 6. We heard learned counsel for the parties and the learned Advocate General. 7. First of all in the matter of examination of validity of some provisions, we have to see the source of power to legislate on the part of the authority which has enacted the law. 6. We heard learned counsel for the parties and the learned Advocate General. 7. First of all in the matter of examination of validity of some provisions, we have to see the source of power to legislate on the part of the authority which has enacted the law. The Hindu Succession Act, 1956 (Act 30 of 1956) was enacted by the Parliament which is covered by entry No.V of concurrent list i.e. list III of 7th Schedule of the Constitution of India which empowers the Parliament and the State Legislatures to make laws in respect of matters pertaining to marriage and divorce, infant and minor, adoption, will, intestate and succession, joint family partition and matters in respect of which parties in judicial proceedings were immediately before the commencement of the constitution subject to other personal law. As such, it is clear that the Parliament had the power to legislate the law pertaining to intestate succession relating to Hindus under Clause (2) of Article 246. Now we come to the Statement of Objects and Reasons of Hindu Succession Act, which reads as follows:- "STATEMENT OF OBJECTS AND REASONS This, the third instalment of the Hindu Code, seeks to amend and codify the law relating to intestate succession. The original draft of the provisions relating to intestate succession contained in the Rau's Committee Bill underwent substantial changes in the hands of the Select Committee which considered the Rau's Committee Bill in 1948. This Bill follows to a large extent the scheme adopted by the Select Committee but takes into account the various suggestions made from time to time for the amendment of the Select Committee's version of the Bill. In particular, special provisions have been included for regulating succession to the property of intestates governed by the Marumakkattayam, Aliyasantana or Nambudri Laws of Inheritance". The Preamble of the act reads as follows:- "an Act to amend and codify the law relating to intestate succession among Hindus." 9. The rules of inheritance contained in Hindu Succession Act, 1956 govern the devolution of property on the death of a Hindu upon other persons solely on account of their relationship to the former. The law of heir-ship among Hindus has close connection with the doctrine - "he who inherits the property, also offer the Pinda". According to Mullah, it was based upon the principle of consanguinity. The theory of spiritual benefit was a later development. The law of heir-ship among Hindus has close connection with the doctrine - "he who inherits the property, also offer the Pinda". According to Mullah, it was based upon the principle of consanguinity. The theory of spiritual benefit was a later development. 10. The Hindu Succession Act, 1956 came into force on 17.6.1956 which not only amends but also codifies (as mentioned in the Preamble) the law relating to intestate succession among the Hindus whereby some fundamental and radical changes were made in the law of succession. Through this legislation, a uniform law of succession was made applicable to almost all sections of Hindus except certain tribals. The two systems of inheritance of property of a male intestate prevailed under Mitakshara and Dayabhaga Schools were modified to make them one. And the classes of heirs recognized by Mitakshara as Gotras sapinda samanodakas and Bandhus and the three classes of heirs recognized by Dayabhaga i.e. Sapindas, Sakulias and Bandhus were replaced by four categories or classes, namely, (i) Heirs of class I (of the Schedule of the Act), (ii) Heirs of class II (of the Schedule of the Act), (iii) Agnates, (iv) Cognates. In view of the provisions contained in section 8 and 9 of the Hindu Succession Act, 1956, the property devolves first on the heirs mentioned in class I of the Schedule of the Act and failing such heirs upon the I, III and IV class of heirs. The Schedule of the Act is reproduced below: "HEIRS IN CLASS I AND CLASS II Class I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; [son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a predeceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son]. Class II. Father II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister. III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son (4) daughter's daughter's daughter. IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter. V. Father's father; father's mother. VI. Class II. Father II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister. III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son (4) daughter's daughter's daughter. IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter. V. Father's father; father's mother. VI. Father's widow; brother's widow. VII. Father's brother; father's sister. VIII. Mother's father; mother's mother. IX. Mother's brother; mother's sister. Explanation - In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood". From the above Schedule, it is clear the legislature has attempted to bring gender equality against the law prevailing prior to the enactment of Hindu Succession Act, 1956. 11. The issue before us is in respect of intestate rights of heirs mentioned in class II. The petitioners who are sons of the pre-deceased brother of the deceased have pleaded that they have been arbitrarily discriminated against the living brother of the deceased. In other words, petitioners are challenging the entry IV of class n of Schedule read with second part of Section 9 of the Hindu Succession Act, 1956. Second part of Section 9 provides that "those in first entry in class n shall be preferred to those in n entry; those in II entry shall be preferred to those in the III entry; and so on in succession". The petitioners in the present case fall under entry IV of class II as they are sons of the predeceased brother of the deceased, while father of respondent No. 4 inherited the property under entry n of class II being living brother of the deceased. According to Mullah, a Hindu governed by Dayabhaga law is sapinda (i) of those to whom he is bound to offer a pinda while he is alive, (ii) of those who on his death are bound to offer a pinda to him, and (iii) of those who are bound to offer a pinda to the ancestors to whom he is bound to offer a pinda, those ancestors being his three immediate paternal ancestors and his three immediate maternal ancestors. 12. Para 86 of Mulla Hindu law clarifies that the order of succession among sapindas is governed by following four principles: (i) Those who offer pinda to the deceased are preferred to those who accept it from the deceased. 12. Para 86 of Mulla Hindu law clarifies that the order of succession among sapindas is governed by following four principles: (i) Those who offer pinda to the deceased are preferred to those who accept it from the deceased. (ii) Those who offer oblations to both paternal and maternal ancestors are preferred to those who offer oblations only to the paternal ancestors. (iii) Those who offer pinda to the paternal ancestors of the deceased are preferred to those who offer it to maternal ancestors. (iv) Those who offer larger number of cakes of particular description are preferred to those who offer less number of cakes of the same description, and where number of cakes are equal to those who offer them to nearer ancestors are preferred to those who offer them to more distant ancestors. 13. It appears that the above principles are the basis of classifying brothers and sons of pre-deceased brothers in the Schedule of Hindu Succession Act, 1956. As such, it cannot be said that the classification made between the pre-deceased brother's sons of the deceased and the brother of the deceased are arbitrary or discriminatory. 14. In State of Bihar vs Bihar Distillery Ltd (1997) 2 SCC page 453, the Apex Court has held that while deciding the constitutionality of enactment, the Court should: "a) try to sustain validity of the impugned law to the extent possible. It can strike down the enactment only when it is impossible to sustain it; b) the Court should not approach the enactment with a view to pick holes or to search for defects of drafting or for the language employed; c) the Court should consider that the Act made by the legislature represents the will of the people and that cannot be lightly interfered with; d) the Court should strike down the Act only when the unconstitutionality is plainly and clearly established; e) the Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it". 15. For the reasons as discussed above, we find that entry IV of class n in the schedule of the Hindu Succession Act, 1956 is not violative of any constitutional provision. As such, this writ petition liable to be dismissed. 16. Accordingly the writ petition is dismissed. No order as to costs.