Holding

A self‑acquired or separately partitioned property of a male Hindu dying intestate devolves by inheritance, and the daughter is entitled to inherit it in preference to other collaterals.

Summary

The appeal concerned a partition suit filed by the daughter of Ramasamy Gounder, who claimed a one‑fifth share in property that was originally purchased by his brother Marappa Gounder in 1938. The lower courts held that Marappa died in 1949, that the property was joint family property and thus devolved by survivorship to the brother's son, rejecting the daughter's claim. The Supreme Court examined whether the property was self‑acquired and, if so, whether it should pass by inheritance to the sole surviving daughter under Hindu law and the Hindu Succession Act, 1956. Relying on the Mitakshara school, the Court held that self‑acquired or separately partitioned property of a male Hindu dying intestate devolves by succession, not survivorship, and a daughter is an heir in preference to collaterals. Applying Sections 14, 15 and 16 of the Hindu Succession Act, the Court found that the daughter’s inheritance was absolute and that the subsequent heirs of her father were entitled to one‑fifth shares each. Consequently, the trial court and High Court judgments were set aside and the appeal was allowed, granting the partition decree in favour of the appellant’s heirs.

Issues considered

The nature of the property purchased by Marappa Gounder – whether it was self‑acquired (separate) or part of joint family property.
Whether a self‑acquired or separately partitioned property of a male Hindu dying intestate devolves by survivorship or by succession.
The entitlement of a sole surviving daughter to inherit such property under the Mitakshara school and the Hindu Succession Act, 1956.
The order of succession applicable to the daughter’s heirs after her death, considering the provisions of Sections 14, 15 and 16 of the Hindu Succession Act.

Legislation cited

Code of Civil Procedure, 1908s. 96
Hindu Law of Inheritance (Amendment) Act, 1929
Hindu Succession Act, 1956s. 14, s. 15, s. 16

Subjects

Hindu Succession Actself‑acquired propertydaughter inheritanceMitakshara lawsurvivorship vs successionpartition suitintestate successiongender equality in inheritance

Judgment

[2022] 1 S.C.R. 269 269

ARUNACHALA GOUNDER (DEAD) BY LRS. A
v.
PONNUSAMY AND ORS.
(Civil Appeal No. 6659 of 2011)
JANUARY 20, 2022 B

[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]
Hindu Succession Act, 1956: Self acquired property of male
Hindu dying intestate – Right of daughter of such male Hindu to
inherit – Held: If a property of a male Hindu dying intestate is a C
self acquired property or obtained in partition of a co-parcenery
or a family property, the same would devolve by inheritance and
not by survivorship, and a daughter of such a male Hindu would
be entitled to inherit such property in preference to other collaterals
– In the case at hands, since the property in question was admittedly
the self-acquired property of male Hindu despite the family being D
in state of jointness upon his death intestate, his sole surviving
daughter will inherit the same by inheritance and the property shall
not devolve by survivorship.
Hindu Succession Act, 1956: Scheme of the Act – Held: The
main scheme of this Act is to establish complete equality between E
male and female with regard to property rights and the rights of the
female were declared absolute, completely abolishing all notions of
a limited estate – The Act brought about changes in the law of
succession among Hindus and gave rights which were till then
unknown in relation to women’s property – The Act lays down a
F
uniform and comprehensive system of inheritance and applies, inter-
alia, to persons governed by the Mitakshara and Dayabhaga
Schools and also to those governed previously by the
Murumakkattayam, Aliyasantana and Nambudri Laws – The Act
applies to every person, who is a Hindu by religion in any of its
forms including a Virashaiva, a Lingayat or a follower of the Brahmo G
Pararthana or Arya Samaj and even to any person who is Buddhist,
Jain or Sikh by religion excepting one who is Muslim, Christian,
Parsi or Jew or Sikh by religion.
Hindu Succession Act, 1956: s.14 – Absolute right of female
Hindu – Held: s.14 of the Act of 1956 declares property of a female H
269
270 SUPREME COURT REPORTS [2022] 1 S.C.R.

A Hindu to be her absolute property – The legislative intent of enacting
s.14(I) of the Act was to remedy the limitation of a Hindu woman
who could not claim absolute interest in the properties inherited by
her but only had a life interest in the estate so inherited – s.14(1)
converted all limited estates owned by women into absolute estates
and the succession of these properties in the absence of a will or
B
testament would take place in consonance with s.15 of the Act, 1956.
Hindu Succession Act, 1956: s.15(2) – Purpose of enactment
– Held: The basic aim of the legislature in enacting s.15(2) is to
ensure that inherited property of a female Hindu dying issueless
and intestate, goes back to the source – s.15(1)(d) provides that
C failing all heirs of the female specified in Entries (a)-(c), but not
until then, all her property howsoever acquired will devolve upon
the heirs of the father – The devolution upon the heirs of the father
shall be in the same order and according to the same rules as would
have applied if the property had belonged to the father and he had
D died intestate in respect thereof immediately after her death –
Applying the settled legal proposition to the facts of the case at
hands, since the succession of the suit properties opened in 1967
upon death of Kupayee Ammal, the 1956 Act shall apply and thereby
Ramasamy Gounder’s daughter’s being Class-I heirs of their father
too shall also be heirs and entitled to 1/5th Share in each of the suit
E properties.
Hindu law: History and development – Hindus believe their
laws to exist in the revelations preserved in ‘Vedas’, Shrutis (that
which are heard and revealed) and Smritis (that which is remembered)
in contradiction to Shrutis – The Smritis comprise forensic law or
F the Dharma Shastra and are believed to be recorded in the very
words of Lord Brahma – The Dharma Shastra or forensic Law is to
be found primarily in the institutes or collections known as
‘Sanhitas’, Smritis or in other words, the text books attributed to
the learned scholarly sages, such as, Manu, Yajnavalchya, Vishnu,
G Parasara and Guatama, etc. – Their writings are considered by the
Hindus as authentic works – On these commentaries, digests and
annotations have been written – The commentaries by various
learned scholars have given rise to different schools of Hindu Law
- like Daya Bhaga in Bengal, Mayukha in Bombay, Konkan and
Gujarat and Marumakkattayam or Nambudri in Kerala and
H Mitakshara in other parts of India – The Mitakshara school of law
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 271

is one of the most important schools of law having a very wide A
jurisdiction – It applies to majority of India with slight variations
with the fundamental principles being the same – The Mitakshara
has always been considered as the main authority for all the schools
of law, with the sole exception of that of Bengal, which is mostly
covered by another school known as Daya Bhaga – The Mitakshara
B
school derives majorly from the running commentaries of Smritis
written by ‘Yajnavalkya’.
Hindu law: Dayabhaga system and Mitakshara system –
Distinction between – The Dayabhaga system prevails in Bengal,
while the Mitakshara system is applicable to other parts of India –
The difference between the two systems arises from the fact that, C
while the doctrine of religious efficacy is the guiding principle under
Dayabhaga School, there is no such definite guiding principle under
the Mitakshara School – Sometimes consanguinity, and at the other
times, religious efficacy has been regarded as the guiding principle
– According to ‘Mulla’, Mitakshara recognises two modes of D
devolution of property, namely, survivorship and succession – The
rules of survivorship apply to joint family property, and the rules of
succession apply to property held in absolute severalty by the last
owner.
Allowing the appeal, the Court E
HELD: 1.1 The exact origin of Hindu Law is shrouded in
antiquity, however, the Hindus believe their laws to exist in the
revelations preserved in ‘Vedas’, Shrutis (that which are heard
and revealed) and Smritis (that which is remembered) in
contradiction to Shrutis. The Smritis comprise forensic law or F
the Dharma Shastra and are believed to be recorded in the very
words of Lord Brahma. The Dharma Shastra or forensic Law is
to be found primarily in the institutes or collections known as
‘Sanhitas’, Smritis or in other words, the text books attributed to
the learned scholarly sages, such as, Manu, Yajnavalchya, Vishnu,
Parasara and Guatama, etc. Their writings are considered by the G
Hindus as authentic works. On these commentaries, digests and
annotations have been written. These ancient sources have thus,
charted the development of Hindu Law. These sources constantly
evolved over the years, embracing the whole system of law, and
H
272 SUPREME COURT REPORTS [2022] 1 S.C.R.

A are regarded as conclusive authorities. Besides these sources
customs, equity, justice, good conscience and judicial decisions
have also supplemented the development of Hindu Law.
[Para 21][285-C-E]
1.2 The commentaries by various learned scholars have
B given rise to different schools of Hindu Law- like Daya Bhaga in
Bengal, Mayukha in Bombay, Konkan and Gujarat and
Marumakkattayam or Nambudri in Kerala and Mitakshara in
other parts of India. The Mitakshara school of law is one of the
most important schools of law having a very wide jurisdiction. It
applies to majority of India with slight variations with the
C fundamental principles being the same. These slight variations
formed various sub- schools, namely, Banaras School, Mithila
School, Maharashtra/Bombay School, Dravida/ Madras School.
The Mitakshara is supposed to be the leading authority in the
school of Benaras. Mr. Colebrooke, a famous sanskrit scholar of
D Bengal, writes “the range of its authority and influence is far more
extensive than that of Jinota Vahanas Treatise for it is received
in all other schools of Hindu Law, from Benaras to the southern
extremity of the Peninsula of India, as the chief groundwork of
the doctrines which they follow, and as an authority from which
they rarely dissent”. The Mitakshara has always been considered
E as the main authority for all the schools of law, with the sole
exception of that of Bengal, which is mostly covered by another
school known as Daya Bhaga. [Paras 22, 23][285-F-H; 286-A-B]
Pranjivandas Tulsidas v. Dev Kuvarbai, Bomb. H.C.,
B. 131 – approved.
F
Tuljaram Morarji v. Mathuradas, Bhagvandas, and
Pranjivandas ILR (1881) 5 Bom 662; Chotay Lall v.
Chunnoo Lall and Another 1874 SCC online Cal 10 –
referred to.

G 1.3 One of the sub-schools of Mitakshara- the Madras
school of law tends to cover most of the southern part of India. It
exercises its authority under Mitakshara law school. The
Mitakshara school derives majorly from the running
commentaries of Smritis written by ‘Yajnavalkya’. Other important

H
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 273

sources governing the Mitakshara school are ‘Vyavastha A
Chandrika’ and most importantly Smriti Chandrika. The digest
of ‘Yajnavalkya’ states that “What has been self-acquired by any
one, as an increment, without diminishing the paternal estate,
likewise a gift from a friend or a marriage gift, does not belong to
the coheirs.” The purport of the text of ‘Vrihaspati’ in Vyavastha
B
Chandrika is that the brother or the father and like would not
take the property of a man who died without leaving a male, when
the daughter is alive. By springing from the same limbs of the
father, a daughter has been treated in Smriti Chandrika as equal
to a son. .” ‘NARADA’ aware of the equitableness of the
proposition that it is the daughter who should succeed on the C
failure of the son and the widow, says, “on failure of male issue,
the daughter inherits, for she is equally a cause of perpetuating
the race. [Paras 29, 30, 36, 37][287-D-E; 288-F-H]
1.4 ‘Mulla’ in his book Hindu Law (22nd Edition), while
discussing the law prior to the Hindu Succession Act, 1956 says D
that there are two systems of inheritance amongst the Hindus in
India, namely, Mitakshara system and Dayabhaga system. The
Dayabhaga system prevails in Bengal, while the Mitakshara
system is applicable to other parts of India. The difference between
the two systems arises from the fact that, while the doctrine of
religious efficacy is the guiding principle under Dayabhaga School, E
there is no such definite guiding principle under the Mitakshara
School. Sometimes consanguinity, and at the other times, religious
efficacy has been regarded as the guiding principle. According to
‘Mulla’, Mitakshara recognises two modes of devolution of
property, namely, survivorship and succession. The rules of F
survivorship apply to joint family property, and the rules of
succession apply to property held in absolute severalty by the
last owner. [Para 43][291-G-H; 292-A-B]
2.1 In Hindu Law by Mulla (22nd Edition) while determining
the mode in which the property of a Hindu male, governed by G
Mitakshara Law, devolves on his death, the following propositions
are to be noted :- (1) Where the deceased was, at the time of the
death, a member of joint and undivided family, technically called
coparcenary, his undivided interest Hindu Law by Mulla (22nd

H
274 SUPREME COURT REPORTS [2022] 1 S.C.R.

A Edition) in the coparcenary property devolves on his coparceners
by survivorship. (2) (i) Even if the deceased was joint at the time
of his death, he might have left self-acquired or separate property.
Such property goes to his heirs by succession according to the
order given in § 43, and not to his coparceners; (ii) If the deceased
was at the time of his death, the sole surviving member of a
B
coparcenary property, the whole of his property, including the
coparcenary property, will pass to his heirs by succession
according to the order given in § 43; (iii) If the deceased was
separate at the time of his death from his coparceners, the whole
of his property, however acquired, will pass to his heirs by
C succession according to the order given in § 43; (3) If the
deceased was re-united at the time of his death, his property will
pass to his heirs by succession. [Para 44][292-C-G]
2.2 According to ‘Mulla’ under Mitakshara Law, the right
to inherit arises from propinquity, i.e., proximity of relationship.
D Mitakshara divided blood relations into three classes, namely -
(a) Gotra-sapindas, i.e., Sapindas belonging to the same gotra or
family as the deceased from 1st-7th degree; (b) Samanodaka, i.e.,
persons belonging to the same gotra or family as the deceased
from 8th -14th degree; and (c) Bhinna gotra sapindas, i.e., Sapindas
belonging to a different gotra or family from the deceased. ‘Gotra
E Sapindas’ and ‘Samanodaka’ are persons connected to the
deceased by an unbroken line of male descendants i.e., all agantes;
and Bhinna gotra sapindas are persons connected to the deceased
through a female i.e, cognates such as a sister’s son. ‘Bhinna
gotra sapindas’ are also known as ‘Bandhus’ in Mitakshara. These
F classifications while now archaic and delineated as class-I, class-
II, class-III and class- IV heirs under the Hindu Succession Act,
1956, are of importance with respect to the property in question
considering its succession opened before the commencement of
the Hindu Succession Act, 1956. [Paras 45, 46][292-G-H;
293-B-D]
G
2.3 The Gotra Sapindas of a person, according to Mitakshara
are :- (i) His six male descendants in the male line; i.e., his son,
24 son’s son’s son, etc. (ii) His six male ascendants in the male
line, the wives of the first three of them, and probably also of the
next three; ie, his father, father’s father, father’s father’s father,
H
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 275

etc, being Fl to F6 in the table and their wives, that is Ml to M6, A
being the mother, father’s mother, father’s father’s mother, etc.
(iii) The six male descendants in the collateral male line of each
of his male ascendants; i.e., to X6 in the line of F1, being his
brother, brother’s son, brother’s son’s son, etc; to X6 in the line
of F2, being his paternal uncle, paternal uncle’s son, etc; to X6 in
B
the line of F3, being his paternal grand-uncle, paternal
granduncle’s son, etc.; to X6 in the line of F4; to X6 in the line of
F5', and to x6 in the line of F6. (iv) His wife, daughter, and
daughter’s son. The Sapinda relationship extends to seven
degrees reckoned from and inclusive of the deceased and six
degrees, if you exclude the deceased. The wife becomes a sapinda C
of the husband on marriage. The daughter’s son is not a gotraja
sapinda, he is a bandhu because he is related to the deceased
through a female. However, for the purpose of succession, he is
ranked with gotraja sapindas. [Paras 47, 48][293-D-H; 294-A]
2.4 The Hindu Law of Inheritance (Amendment) Act, 1929 D
was the earliest Statutory legislation which brought the Hindu
females into the scheme of inheritance. The 1929 Act introduced
certain female statutory heirs which were already recognized by
the Madras School, i.e., the son’s daughter, daughter’s daughter,
sister and sister’s son in the order so specified, without making
any modifications in the fundamental concepts underlying the E
textual Hindu Law relating to inheritance; only difference being
that while before the Act, they succeeded as bandhus, under the
Act, they inherited as ‘gotra sapindas’. The Mitakshara law also
recognises inheritance by succession but only to the property
separately owned by an individual, male or female. Females are F
included as heirs to this kind of property by Mitakshara law.
Before the Hindu Law of Inheritance (Amendment) Act 1929,
the Bengal, Benares and Mithila sub-schools of Mitakshara
recognised only five female relations as being entitled to inherit
namely - widow, daughter, mother paternal grandmother and
paternal great-grand mother. The Madras subschool recognized G
the heritable capacity of a larger number of females heirs that is
of the son’s daughter, daughter’s daughter and the sister, as heirs
who are expressly named as heirs in Hindu Law of Inheritance
(Amendment) Act, 1929. The son’s daughter and the daughter’s
H
276 SUPREME COURT REPORTS [2022] 1 S.C.R.

A daughter ranked as bandhus in Bombay and Madras. The Bombay
school which is most liberal to women, recognized a number of
other female heirs, including a half -sister, father’s sister and
women married into the family such as stepmother, son’s widow,
brother’s widow and also many other females classified as
bandhus. Thus, it is abundantly clear that a daughter was in fact
B
capable of inheriting the father’s separate estate. [Paras 49,
50][294-B-F]
Katama Natchiar v. Srimut Rajah Mootoo Vijaya
Raganadha Bodha Gooroo Sawmy Periya Odaya Taver
(1863) 9 MIA 539; Sivagnana Tevar and Anr. v.
C Periasami & Ors. (1818) 1 ILR Madras 312;
Ghurpatari & Ors. v. Smt. Sampati & Ors. AIR 1976
All 195 – referred to
3. The Hindu Law of Inheritance (Amendment) Act II of
1929 for the first time entitled the daughter’s daughter, subject
D to a special family or local custom, to succeed to the property of
a male Hindu governed by Mitakshara Law. Daughter’s daughter
then ranked 13th-B in the order of succession. The order of
succession to the estate of a Hindu dying interstate and governed
by Mitakshara Law are set out in Paragraph 43 of Mulla’s
E Principles of Hindu Law. Ancient text as also the Smritis, the
Commentaries written by various renowned learned persons and
even judicial pronouncements have recognized the rights of
several female heirs, the wives and the daughter’s being the
foremost of them. The rights of women in the family to
maintenance were in every case very substantial rights and on
F whole, it would seem that some of the commentators erred in
drawing adverse inferences from the vague references to
women’s succession in the earlier Smritis. The views of the
Mitakshara on the matter are unmistakable. Vijneshwara also
nowhere endorses the view that women are incompetent to
G inherit. [Paras 59, 64, 65][301-E-G; 304-B-D]
Lal Singh & Ors. v. Roor Singh & Ors.55 Punjab Law
Reporter 168; Gopal Singh & Ors. v. Ujagar Singh &
Ors. AIR 1954 SC 579 : [1955] 1 SCR 86; Devidas &
Ors. v. Vithabai & Anr (2008) 5 ML.LJ 296 – referred
H to.
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 277

4.1 Right of a widow or daughter to inherit the self-acquired A
property or share received in partition of a coparcenary property
of a Hindu male dying intestate is well recognized not only under
the old customary Hindu Law but also by various judicial
pronouncements. If a property of a male Hindu dying intestate is
a self acquired property or obtained in partition of a co-parcenery
B
or a family property, the same would devolve by inheritance and
not by survivorship, and a daughter of such a male Hindu would
be entitled to inherit such property in preference to other
collaterals. In the case at hands, since the property in question
was admittedly the self-acquired property of Marappa Gounder
despite the family being in state of jointness upon his death C
intestate, his sole surviving daughter Kupayee Ammal, will inherit
the same by inheritance and the property shall not devolve by
survivorship. [Paras 66, 67][304-E-H]
4.2 Under the old customary Hindu Law, there are
contradictory opinions in respect of the order of succession to D
be followed after the death of such a daughter inheriting the
property from his father. One school is of the view that such a
daughter inherits a limited estate like a widow, and after her death
would revert back to the heirs of the deceased male who would
be entitled to inherit by survivorship. While other school of
thought holds the opposite view. This conflict of opinion may not E
be relevant in the present case inasmuch as since Kupayee
Ammal, daughter of Marappa Gounder, after inheriting the suit
property upon the death of Marappa Gounder, died after
enforcement of Hindu Succession Act, 1956 which has amended
and codified the Hindu Law relating to intestate succession among F
Hindus. The main scheme of this Act is to establish complete
equality between male and female with regard to property rights
and the rights of the female were declared absolute, completely
abolishing all notions of a limited estate. The Act brought about
changes in the law of succession among Hindus and gave rights
which were till then unknown in relation to women’s property. G
The Act lays down a uniform and comprehensive system of
inheritance and applies, inter-alia, to persons governed by the
Mitakshara and Dayabhaga Schools and also to those governed
previously by the Murumakkattayam, Aliyasantana and Nambudri
H
278 SUPREME COURT REPORTS [2022] 1 S.C.R.

A Laws. The Act applies to every person, who is a Hindu by religion
in any of its forms including a Virashaiva, a Lingayat or a follower
of the Brahmo Pararthana or Arya Samaj and even to any person
who is Buddhist, Jain or Sikh by religion excepting one who is
Muslim, Christian, Parsi or Jew or Sikh by religion. Section 14 of
the Act of 1956 declares property of a female Hindu to be her
B
absolute property. The legislative intent of enacting Section 14(I)
of the Act was to remedy the limitation of a Hindu woman who
could not claim absolute interest in the properties inherited by
her but only had a life interest in the estate so inherited.
[Paras 68, 69][305-A-F; 306-C-D]
C 4.3 Section 14(1) converted all limited estates owned by
women into absolute estates and the succession of these
properties in the absence of a will or testament would take place
in consonance with Section 15 of the Hindu Succession Act, 1956.
The scheme of sub-Section (1) of Section 15 goes to show that
D property of Hindu females dying intestate is to devolve on her
own heirs, the list whereof is enumerated in Clauses (a) to (e) of
Section 15 (1). Sub-Section (2) of Section 15 carves out
exceptions only with regard to property acquired through
inheritance and further, the exception is confined to the property
inherited by a Hindu female either from her father or mother, or
E from her husband, or from her father-in-law. The exceptions
carved out by sub-Section (2) shall operate only in the event of
the Hindu female dies without leaving any direct heirs, i.e., her
son or daughter or children of the pre-deceased son or daughter.
Thus, if a female Hindu dies intestate without leaving any issue,
F then the property inherited by her from her father or mother
would go to the heirs of her father whereas the property inherited
from her husband or father-in-law would go to the heirs of the
husband. In case, a female Hindu dies leaving behind her husband
or any issue, then Section 15(1)(a) comes into operation and the
properties left behind including the properties which she
G inherited from her parents would devolve simultaneously upon
her husband and her issues as provided in Section 15(1)(a) of the
Act. [Paras 70, 71, 72][306-D; 307-G-H; 308-A-C]

H
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 279

4.4 The basic aim of the legislature in enacting Section 15(2) A
is to ensure that inherited property of a female Hindu dying
issueless and intestate, goes back to the source. Section 15(1)(d)
provides that failing all heirs of the female specified in Entries
(a)-(c), but not until then, all her property howsoever acquired
will devolve upon the heirs of the father. The devolution upon
B
the heirs of the father shall be in the same order and according to
the same rules as would have applied if the property had belonged
to the father and he had died intestate in respect thereof
immediately after her death. In the present case the since the
succession of the suit properties opened in 1967 upon death of
Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy C
Gounder’s daughters being Class-I heirs of their father too shall
be heirs and entitled to 1/5th share each in the suit properties.
Applying the above settled legal proposition to the facts of the
case at hands, since the succession of the suit properties opened
in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply
D
and thereby Ramasamy Gounder’s daughter’s being Class-I heirs
of their father too shall also be heirs and entitled to 1/5th Share
in each of the suit properties. [Paras 73, 74, 77][308-C-F;
310-B-C]
State of Punjab v. Balwant Singh & Ors. 1992 Supp.
(3) SCC 108 : [1991] 1 suppl.SCR 458; Bhagat Ram E
(dead) by LRs. v. Teja Singh (dead) by LRs.16 (2002) 1
SCC 210 – relied on.
Case Law Reference
[1955] 1 SCR 86 referred to Para 61
F
[1991] 1 suppl.SCR 458 relied on Para 75
(2002) 1 SCC 210 relied on Para 76
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6659 of
2011.
From the Judgment and Order dated 21.01.2009 of the High Court G
of Judicature at Madras in A.S. No.351 of 1994.
P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, Ms. V.
Keerthana, Anubhav Chaturvedi, Pankaj Agarwal, Advs. for the
Appellants.
H
280 SUPREME COURT REPORTS [2022] 1 S.C.R.

A K. K. Mani, Ms. T. Archana, Advs. for the Respondents.
The Judgment of the Court was delivered by
KRISHNA MURARI, J.
1. Challenge has been laid in this Civil Appeal to the judgment and
B order dated 21.01.2009 passed by the High Court of Judicature at Madras
(hereinafter referred to as ‘High Court’) dismissing a regular First Appeal
being A.S. No. 351 of 1994 filed under Section 96 of the Code of Civil
Procedure, 1908, challenging the judgment and decree dated 01.03.1994
rendered by the Trial Court dismissing Original Suit No. 295 of 1991 for
partition filed by the appellant herein, claiming 1/5th share in the suit
C properties.
2. The following genealogy of the parties is necessary to be taken

D

E

F

G

H
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 281
[KRISHNA MURARI, J.]

note of for appreciating their claims and contentions :- A
3. Suit for partition was filed by Thangammal, daughter of
Ramasamy Gounder, claiming 1/5th share in the suit property on the
allegations that the plaintiff and defendant nos. 5 and 6, namely, Elayammal
and Nallammal and one Ramayeeammal are sisters of Gurunatha
Gounder, all the five of them being the children of Ramasamy Gounder. B
The said Ramasamy Gounder had an elder brother by the name of
Marappa Gounder. Ramasamy Gounder, predeceased his brother
Marappa Gounder who died on 14.04.1957 leaving behind the sole
daughter by the name of Kuppayee Ammal who also died issueless in
1967. Further case set up by the plaintiff/appellant was that after the
C
death of Marappa Gounder, his property was inherited by Kuppayee
Ammal and upon her death in 1967, all the five children of Ramasamy
Gounder, namely, Gurunatha Gounder, Thangammal (Original Plaintiff
now represented by legal heir), Ramayeeammal, Elayammal and
Nallammal are heirs in equal of Kuppayee and entitled to 1/5th share
each. D
4. Gurunatha Gounder, died leaving behind defendant nos. 1 to 4
(Respondents herein) as heirs and legal representatives. Ramayeeammal
died leaving behind defendants 7 to 9. The plaintiff-appellant,
Thangammal, died leaving behind, appellant nos. 1, 3 and 4 herein and
Appellant no. 1, Arunachala Gounder, since having died is represented E
by her legal representatives appellant no. 1, Venkatachalam and appeallant
no. 2, A. Mottaiyappan.
5. The defence set up by the defendant-respondents was that
Marappa Gounder died on 11.05.1949 and not on 14.04.1957 as alleged
by the plaintiff-appellant and as per the provisions of Hindu Law prevailing F
prior to 1956, Gurunatha Gounder was the sole heir of Marappa Gounder
and accordingly, he inherited the suit properties and was in possession
and enjoyment of these properties and after his death the respondents
herein, were continuing as lawful owners.
6. It is an undisputed fact between the parties that the property in G
question i.e., the suit property, was independently purchased by Marappa
Gounder in the year 1938 through the process of a Court auction and
thus, it was his independent property. However, there was a issue between
the parties in respect of the date of death of Marappa Gounder. The
H
282 SUPREME COURT REPORTS [2022] 1 S.C.R.

A plaintiff – appellant asserted the date of death as 14.04.1957, whereas
the defendant-respondent pleaded the date of death as 15.04.1949.
7. The Trial Court after considering the evidence brought on record
of the case by the parties concluded that Marappa Gounder died on
15.04.1949 and thus, the suit property would devolve upon the sole son
B of deceased Ramasamy Gounder, the deceased brother of Marappa
Gounder by survivorship and the plaintiff-appellant had no right to file
the suit for partition and, accordingly, dismissed the suit.
8. The findings recorded by the Trial Court particularly in respect
of the date of death of Marappa Gounder in 1949 was confirmed by the
C High Court in the first appeal and the decree dismissing the suit for
partition was affirmed holding that the property would devolve upon the
defendant by way of survivorship.
9. We have heard Shri P.V. Yogeswaran, learned counsel for the
appellant and Shri K.K. Mani, learned counsel for the respondents.
D Arguments on behlaf of Appellants
10. Shri P.V. Yogeswaran, learned counsel for the appellant submits
that since the property was purchased through Court auction sale by the
Marappa Gounder on 15.12.1938, hence, it is his independent property
and it was never considered as a joint family property, as such on death
E of Marappa Gounder, this property would devolve by succession upon
his daughter, Kupayee Ammal, who died in the year 1967. He further
submitted that under the law of Mitakshara, the right to inheritance
depends upon propinquity i.e., proximity of relationship. Since, the
daughter has closer proximity of relationship, she would inherit the
F property from the father instead of the father’s brother’s son and daughter.
11. He further points out that there are three classes of heirs
recognized by Mitakshara, namely, (a) Gotrajasapindas, (b) Samanodakas
and (c)Bandhus. The first class succeeds before the second and the
second succeeds before the third. To support the contentions, he made a
G reference to Mulla Hindu Law 23rd Edition. He also submitted that under
the Hindu Law, a daughter is not disqualified to inherit in separate property
of her father and when a male Hindu dies without a son leaving only
daughter, his separate property would devolve upon the daughter through
succession and the property will not devolve upon brother’s son through
survivorship and the Courts below have wrongly applied the principles
H
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 283
[KRISHNA MURARI, J.]

of Hindu Law and dismissed the suit. In support of his contention, he A
cited references from various commentaries which we shall deal with at
appropriate place.
Arguments on behlaf of Respondents
12. Shri K.K. Mani, learned counsel representing respondents
submitted that the property in question was purchased by Marappa B
Gounder in Court auction sale out of the family funds and thus, it was a
joint property, and on his death, since he had no male heir, the defendant
as a coparcener succeeded to the estate. He further submitted that the
Trial Court after scrutinizing the evidence brought on record by the parties
came to the conclusion that the paternal uncle of plaintiff, Marappa C
Gounder, died prior to the enforcement of Hindu Succession Act, 1956
and, therefore, the plaintiff and other sisters of the plaintiff were not the
heirs as on the date of death of Marappa Gounder in the year 1949 and
thus, plaintiff was not entitled to the partition of 1/5th share in the suit
properties, and thus, the suit was rightly dismissed. He further submits
that when the date of death of Marappa Gounder, was confirmed to be D
in the year 1949, the Succession to his properties would open in the year
1949 when Kupayee Ammal, the daughter of Marappa Gounder, was
not having any right to inherit the property left by her deceased father.
The only heir available at the time of death of Marappa Gounder was
Guranatha Gounder, the son of Ramasamy Gounder, who was none other
E
than the father of the Defendants 1 to 4. Once the properties of Marappa
Gounder devolved upon Guranatha Gounder, it became his property and,
therefore, it could not be made the subject matter of the partition after
the promulgation of Hindu Succession Act, 1956. He also submitted that
neither any issue was framed nor any evidence was led by the plaintiff-
appellant throughout the entire proceedings to establish that property F
purchased in the Court auction in the year 1938 was a self-acquired
property of Marappa Gounder and thus, it would be presumed that it
was a joint family property leaving no rights in his daughter to inherit the
same.
13. We have considered the arguments advanced by the learned G
counsel for the parties and with their assistance perused the record of
the case and the various texts and commentaries pertaining to Hindu
Law.
14. Insofar as, the date of death of Marappa Gounder being
15.04.1949, it is a finding of fact affirmed by the two fact-finding Courts
H
284 SUPREME COURT REPORTS [2022] 1 S.C.R.

A based on appreciation of material evidence existing on the record of the
case and is not liable to be interfered with and we proceed to decide the
issue between the parties taking the date of death of Marappa Gounder
as 15.04.1949.
15. The other aspect of the matter is whether the suit property
B was exclusively purchased by Marappa Gounder in the Court auction
and was his separate property or it was purchased out of the joint family
fund making it a joint family property. It is correct that neither any issue
was framed by Trial Court in this regard nor any evidence was led by
the parties nor any finding has been returned. However, in view of the
admission made by the defendant in para 3 of the written statement that
C suit properties are absolute properties of Marappa Gounder, he having
purchased the same in a Court auction sale on 19.09.1938, there was
hardly any necessity to frame any issue in this regard, once the fact was
admitted in written statement.
16. It may be relevant to extract the relevant part of paragraph 3
D of the written statement which reads as under :-
“3. It is true that the suit properties are the absolute properties
of the Marappa Gounder, he having purchased the suit
properties in the Court auction sale on 19.09.1938.”
17. Furthermore, the defendants themselves have nowhere pleaded
E that purchase of suit property was made by Marappa Gounder out of
the joint family funds. There is a clear admission in the written statement
that property in question was the absolute property of Marappa Gounder,
he having purchased the same in the Court auction sale.
17.1 In view of above facts, the arguments advanced by learned
F counsel for the respondent, in this regard, has no force and not liable to
be accepted.
18. In the backdrop of the above facts, the primary issue which
arises for our consideration is with respect to the right of the sole daughter
to inherit the self-acquired property of her father, in the absence of any
G other legal heir having inheritable rights before the commencement of
the Hindu Succession Act, 1956 or in other words, whether such suit
property will devolve on to the daughter upon the death of her father
intestate by inheritance or shall devolve on to father’s brother’s son by
survivorship.
H 19. The determination and adjudication of the issue depends upon
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 285
[KRISHNA MURARI, J.]

the answers to the following questions :- A
1) What is the nature of the property and what would be the
course of succession if it is a separate property as opposed
to undivided property?
2) Whether a sole daughter could inherit her father’s separate
property dying intestate? And if so - B
3) What would be the order of succession after the death of
such daughter?
20. To answer these questions, we are required to delve into the
concepts of old Hindu Law and its application. It is also imperative to
look into it’s origin and sources. C
Sources of Hindu Law
21. The exact origin of Hindu Law is shrouded in antiquity, however,
the Hindus believe their laws to exist in the revelations preserved in
‘Vedas’, Shrutis (that which are heard and revealed) and Smritis in
contradiction to Shrutis (that which is remembered). The Smritis comprise D
forensic law or the Dharma Shastra and are believed to be recorded in
the very words of Lord Brahma. The Dharma Shastra or forensic Law
is to be found primarily in the institutes or collections known as ‘Sanhitas’,
Smritis or in other words, the text books attributed to the learned scholarly
sages, such as, Manu, Yajnavalchya, Vishnu, Parasara and Guatama, E
etc. Their writings are considered by the Hindus as authentic works. On
these commentaries, digests and annotations have been written. These
ancient sources have thus, charted the development of Hindu Law. These
sources constantly evolved over the years, embracing the whole system
of law, and are regarded as conclusive authorities. Besides these sources
customs, equity, justice, good conscience and judicial decisions have also F
supplemented the development of Hindu Law.
22. The commentaries by various learned scholars have given
rise to different schools of Hindu Law- like Daya Bhaga in Bengal,
Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or
Nambudri in Kerala and Mitakshara in other parts of India. The G
Mitakshara school of law is one of the most important schools of law
having a very vide jurisdiction. It applies to majority of India with slight
variations with the fundamental principles being the same. These slight
variations formed various sub-schools, namely, Banaras School, Mithila
School, Maharashtra/Bombay School, Dravida/ Madras School.
H
286 SUPREME COURT REPORTS [2022] 1 S.C.R.

A 23. The Mitakshara is supposed to be the leading authority in the
school of Benaras. Mr. Colebrooke, a famous sanskrit scholar of Bengal,
writes “the range of its authority and influence is far more extensive
than that of Jinota Vahanas Treatise for it is received in all other schools
of Hindu Law, from Benaras to the southern extremity of the Peninsula
of India, as the chief groundwork of the doctrines which they follow, and
B
as an authority from which they rarely dissent”1. The Mitakshara has
always been considered as the main authority for all the schools of law,
with the sole exception of that of Bengal, which is mostly covered by
another school known as Daya Bhaga.
24. Reference may also be made to another observation at Page-
C 165, where it is stated as under :-
“Failing male issue, therefore, a widow takes the self- acquired
property of her husband. No doubt, on failure of male issue
and a widow, the daughter would take.”
25. The commentary also refers to a case of Pranjivandas
D Tulsidas Vs. Dev Kuvarbai, 1 Bomb. H.C., B. 131, wherein a Hindu
owning separate property died without a male issue, leaving behind – a
widow, four daughter and a brother and male issues of other deceased
brothers. The Court observed that the widow was entitled to a life estate
in the property and subject to her interest the property would devolve to
E the daughters absolutely in preference to the brother and the issue of the
deceased brothers.
26. References to this case have also been made in numerous
reported as well as unreported cases; as in the case of Tuljaram Morarji
vs. Mathuradas, Bhagvandas, and Pranjivandas 2, it was observed
F that :-
“…The decision in that case and that in Pranjivandas vs.
Devkuvarbai have been steadily followed by the High Court
in numerous unreported cases, and by the legal profession….
Any departure now from those decisions would cause much
confusion and injustice throughout this Presidency, and no
G
advantage that we can perceive. We, therefore, must abide by

1
A Treatise on Hindoo Law by Standish Grove Grady published in1868 by Gantz
Brother Mount Road, Madras.
2
ILR (1881) 5 Bom 662
H 3
1874 SCC OnLine Cal 10
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 287
[KRISHNA MURARI, J.]

the principles which they clearly indicate.” A
3
27. In the case of Chotay Lall vs. Chunnoo Lall and Another
the Court noted:-
“The following are the direct authorities on the point. Sir M.
Sausse in 1859, in Pranjivandas Tulsidas v. Devkuvarbai (2),
held that a daughter takes absolutely when inheriting from B
her father. In Bhaskar Trimbak
(3)
Acharya v. Mahadev Ramji , decided in January 1869 by Sir
Joseph Arnould, the head note states that all property acquired
by a married woman by inheritance (except from her husband) C
classes as stridhan, and descends accordingly. But this case
is founded exclusively on the case of Pranjivandas Tulsidas
v. Devkuvarbai.
28. However, despite our best efforts we could not get a copy of
the judgment in the case of Pranjivandas (Supra), therefore, we are D
relying upon the aforesaid observations made in the said case by the
Bombay High Court as mentioned in the commentary by Standish Grove
Grady and the above-mentioned cases.
29. One of the sub-schools of Mitakshara- the Madras school of
law tends to cover most of the southern part of India. It exercises its
E
authority under Mitakshara law school. The Mitakshara school derives
majorly from the running commentaries of Smritis written by
‘Yajnavalkya’. Other important sources governing the Mitakshara school
are ‘Vyavastha Chandrika’ and most importantly Smriti Chandrika.
30. The digest of ‘Yajnavalkya’ states that “What has been self-
acquired by any one, as an increment, without diminishing the F
paternal estate, likewise a gift from a friend or a marriage gift,
does not belong to the co- heirs.”
31. It may also be relevant to refer to commentaries and
annotations from The principles and elements of Hindu Law in the form
of a digest by Shyama Charan Sarkar Vidya Bhushan, known as G
‘Vyavastha Chandrika’4, a digest of Hindu Law. Section II of the said
digest deals with Daughters’ Right of Succession.
4
Vyavastha-Chandrika, A Digest of Hindu Law by Shyama Charan Sarkar, Vidya
Bhushan printed in 1878 by I.C.Bose & Co., STANHOPE PRESS 249, Bow-Bazar,
Calcutta. H
288 SUPREME COURT REPORTS [2022] 1 S.C.R.

A 32. In Clause 118 of Section II of the commentary, it is stated as
under :-
“In default of the widow, the daughters inherit the estate of
the man who died separated (from his coparceners) and not
re-united (with them).”
B 33. It also quotes ‘Vishnu’ and ‘Vrihaspati’ as under:-
“Vishnu : The wealth of a man who leaves no male issue goes
to his wife; on failure of her, to his daughter.
Vrihaspati : The wife is pronounced successor to the wealth
of her husband; in her default, the daughter. As a son, so
C does the daughter of a man proceed from his several limbs.
How then, should any other person (b) take her father’s
wealth?
(B) Any other person - These terms exclude the son and widow,
(who are preferable heirs), and include the father and the
D rest. - Smriti Chandrika, Chapter- XI, Section (ii), Clause 5
and 6.
“The meaning is how could the father and the rest take the
property of a son-less man, while the daughter is alive.”
34. It also quotes ‘Manu’ as under :-
E “Manu :- The son of a man is even as himself, and the
daughter is equal to the son. How then can any other inherit
his property, notwithstanding the survival of her, who is, as it
were, himself.”
35. Clause 120 of the ‘Vyavastha Chandrika’ reads as under :-
F
“120 :- A daughter being entitled to inherit the divided
property of her father, it has been, by parity of reasoning,
determined that, she is entitled to inherit also such property
as was separately acquired or held by him, or was vested in
him.”
G 36. The purport of the text of ‘Vrihaspati’ is that the brother or
the father and like would not take the property of a man who died without
leaving a male, when the daughter is alive. By springing from the same
limbs of the father, a daughter has been treated in Smriti Chandrika as
equal to a son.
H 37. ‘NARADA’ aware of the equitableness of the proposition
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 289
[KRISHNA MURARI, J.]

that it is the daughter who should succeed on the failure of the son and A
the widow, says, “on failure of male issue, the daughter inherits, for she
is equally a cause of perpetuating the race.”
38. Standish Grove Grady in his book ‘Treatise’ on Hindoo Law
of Inheritance published in 1868, in Chapter IX - ‘Inheritance of
Succession’ while discussing the line of descent, has observed as under:- B
“Line of Descent - It will be seen in the course of this chapter
that the Hindoo Law of inheritance comprehends the
deceased’s family and his near relations, viz, his issue, male
and female; his widow, who takes immediately in default of
sons- a term which includes grandsons and great-grandsons. C
On exhaustion of this line of descent, the succession ascends
to his parents, brothers, nephews, and grand nephews, this
line continuing upwards to the grandfather and great-
grandfather, the grandmother and great grandmother, the
latter being given precedence by those who have preferred
the mother to the father. The succession then runs downwards D
to their respective issue, including daughter’s sons, but not
daughters, the whole being preferred to the half blood; then
follow the more remote kindred which we shall presently
enumerate.
In proportion as the claimant becomes remote, the particulars E
vary with different schools and authors presently pointed out.
In default of natural kind, the series of heirs in all the classes,
except that of Brahmins, closes with the preceptor of the
deceased, his pupil, his priest, hired to perform sacrifices, or
his fellow-student, each in his order and falling all these, the F
lawful heirs of the Kshtrya, Vashya and Soodra, who are
learned and virtuous Brahmins, resident in the same town or
village with the deceased.
If an estate should vest by succession in a Brahmin-as he,
being such, cannot perform obsequies for one of an inferior
G
caste – the duty may be discharged by substitution of a
qualified person, equal in class with the deceased. In all cases
where the heir is under disabilities, he must take the same
course, paying the person employed for his services. The king
too where the he takes by escheat, must cause obsequies to
H
290 SUPREME COURT REPORTS [2022] 1 S.C.R.

A be performed for the deceased.
The Hindoos give the agnate succession the preference, the
succession of females being deemed exceptions.
Females cannot on account of their sex perform obsequies.
They do not, therefore, confer any benefit and are generally
B disqualified from inheriting. From this rule, there are only
four exceptions for special reasons, viz, the widow, the
daughter, the mother and the grandmother. According to the
Benaras and Mithila Schools, the females above-mentioned
inherit only when the family is divided. In an undivided family,
C females are not admitted as heirs. There are two modes of
devolution of property :-
(I) From a sole separate owner
(ii) From a female.
Property of a united owner cannot be considered as devolving
D upon the rest, they being joint proprietors by birth. In the
second class, the property will, in part, be affected by the
rights of collateral sharers.
But even in undivided families, a widow takes the self-acquired
property of her husband.
E In the case of self-acquired property in the same Chapter,
Grady states :-
“It may safely be stated as a true proposition that property,
which is not ancesteral, is self-acquired, in whatever way the
property may have been obtained, whether by gift or purchase
F or labour, mental or physical, or otherwise.
Referring to judgment of Katama Natchiar Vs. The Rajah of
Shivagunga (which we shall deliberate in the later part of the
judgment), he observes when a Zaminadari was escheated
on the death of the last zamindar, the government granted it a
G new to a distant relation of his. This was treated as self-acquired
property. That case has decided that all self-acquired property
devolves in the same way as the family property of a divided
member. Failing male issue, therefore, a widow takes the self-
acquired property of her husband. No doubt, on the failure
5
Hindu Law and Judicature from the Dharma-Sastra of ‘Yajnavalkya’ published in
H 1859.
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 291
[KRISHNA MURARI, J.]

of male issue and a widow, the daughter would take”. A
39. In the commentary titled as ‘Hindu Law and Judicature’ -
from the Dharma-sastra of Yajnavalkya5 by renowned authors Edward
Roer, PH.D., M.D. and W.A. Montriou, in Clause 135, it is stated as
under :-
“135. If a man depart this life without male issue; (i) his wife, B
(ii) his daughter, (iii) his parents, (iv) his brothers, (v) the
sons of his brothers, (vi) others of the same gotra, (vii) kindred
more remote, (viii) a pupil, (ix) a fellow-student - these succeed
to the inheritance, each class upon failure of the one
preceding. This rule applies to all the caste.” C
40. In another digest “Hindu Law as administered in the Courts
of Madras Presidency6”, arranged and annotated by H.S. Cunningham,
the then Advocate General of Madras, it is stated in Clause 203 of
Chapter VI, dealing with inheritance by daughters as under :-
“Clause-203 :- In default of sons, grandsons, great grandsons, D
and widows, the daughter succeeds to a life estate in her
father’s property.
41. Clause 206 of the said commentary provides that ‘a married
daughters and daughters who are widows succeed irrespectively of the
fact of their being barren or having no male issue’ and similarly, Clause E
207 reads as under :-
“Clause-207 :- Daughters of each class hold their estate
jointly; the share of any daughter dying vests in the surviving
daughter or daughters of the same class, and descends to the
daughters of the next class only when all the daughters of F
the prior class are exhausted. In each class, a daughter who
has not been endowed on marriage, succeeds in preference
to the daughter who has been endowed.”
42. Clause 209 in the said commentary reads as under :-
“Clause 209 :- The daughter succeeds on the death of her G
father’s widow, notwithstanding that such widow be not her
mother.”

6
A Digest of Hindu Law- As administered in the Courts of The Madras Presidency,
published in 1877 by HIGGINBOTHAM & Co. H
292 SUPREME COURT REPORTS [2022] 1 S.C.R.

A 43. ‘Mulla’ in his book Hindu Law (22nd Edition), while discussing
the law prior to the Hindu Succession Act, 1956 says that there are two
systems of inheritance amongst the Hindus in India, namely, Mitakshara
system and Dayabhaga system. The Dayabhaga system prevails in
Bengal, while the Mitakshara system is applicable to other parts of
India. The difference between the two systems arises from the fact
B
that, while the doctrine of religious efficacy is the guiding principle under
Dayabhaga School, there is no such definite guiding principle under the
Mitakshara School. Sometimes consanguinity, and at the other times,
religious efficacy has been regarded as the guiding principle. According
to ‘Mulla’, Mitakshara recognises two modes of devolution of property,
C namely, survivorship and succession. The rules of survivorship apply to
joint family property, and the rules of succession apply to property held
in absolute severalty by the last owner.
44. It may also be relevant to refer to §34 regarding devolution of
property according to Mitakshara Law7 - In determining the mode in
D which the property of a Hindu male, governed by Mitakshara Law,
devolves on his death, the following propositions are to be noted :-
(1) Where the deceased was, at the time of the death, a member
of joint and undivided family, technically called coparcenary,
his undivided interest in the coparcenary property devolves
E on his coparceners by survivorship.
(2) (i) Even if the deceased was joint at the time of his death,
he might have left self-acquired or separate property. Such
property goes to his heirs by succession according to the
order given in § 43, and not to his coparceners;
F (ii) If the deceased was at the time of his death, the sole
surviving member of a coparcenary property, the whole of
his property, including the coparcenary property, will pass
to his heirs by succession according to the order given in §
43;
G (iii)If the deceased was separate at the time of his death
from his coparceners, the whole of his property, however
acquired, will pass to his heirs by succession according to
the order given in § 43;
(3) If the deceased was re-united at the time of his death, his
7
H Hindu Law by Mulla (22 nd Edition)
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 293
[KRISHNA MURARI, J.]

property will pass to his heirs by succession according to A
the Rule laid down in §60.
45. According to ‘Mulla’ under Mitakshara Law, the right to inherit
arises from propinquity, i.e., proximity of relationship. Mitakshara divided
blood relations into three classes, namely -
(a) Gotra-sapindas, i.e., Sapindas belonging to the same gotra B
or family as the deceased from 1st-7th degree;
(b) Samanodaka, i.e., persons belonging to the same gotra or
family as the deceased from 8th -14th degree; and
(c) Bhinna gotra sapindas, i.e., Sapindas belonging to a different C
gotra or family from the deceased.
46. ‘Gotra Sapindas’ and ‘Samanodaka’ are persons connected
to the deceased by an unbroken line of male descendants i.e., all agantes;
and Bhinna gotra sapindas are persons connected to the deceased through
a female i.e, cognates such as a sister’s son. ‘Bhinna gotra sapindas’ D
are also known as ‘Bandhus’ in Mitakshara. These classifications while
now archaic and delineated as class-I, class-II, class-III and class-IV
heirs under the Hindu Succession Act, 1956, are of importance with
respect to the property in question considering its succession opened
before the commencement of the Hindu Succession Act, 1956.
E
47. The Gotra Sapindas of a person, according to Mitakshara
are:-
(i) His six male descendants in the male line; i.e., his son, son’s
son’s son, etc.
(ii) His six male ascendants in the male line, the wives of the F
first three of them, and probably also of the next three; ie,
his father, father’s father, father’s father’s father, etc, being
Fl to F6 in the table and their wives, that is Ml to M6, being
the mother, father’s mother, father’s father’s mother, etc.
(iii) The six male descendants in the collateral male line of each G
of his male ascendants; i.e., to X6 in the line of F1, being
his brother, brother’s son, brother’s son’s son, etc; to X6 in
the line of F2, being his paternal uncle, paternal uncle’s son,
etc; to X6 in the line of F3, being his paternal grand-uncle,
paternal granduncle’s son, etc.; to X6 in the line of F4; to
H
294 SUPREME COURT REPORTS [2022] 1 S.C.R.

A X6 in the line of F5', and to x6 in the line of F6.
(iv) His wife, daughter, and daughter’s son.
48. The Sapinda relationship extends to seven degrees reckoned
from and inclusive of the deceased and six degrees, if you exclude the
deceased. The wife becomes a sapinda of the husband on marriage.
B The daughter’s son is not a gotraja sapinda, he is a bandhu because he is
related to the deceased through a female. However, for the purpose of
succession, he is ranked with gotraja sapindas.
49. The Hindu Law of Inheritance (Amendment) Act, 1929 was
the earliest Statutory legislation which brought the Hindu females into
C the scheme of inheritance. The 1929 Act introduced certain female
statutory heirs which were already recognized by the Madras School,
i.e., the son’s daughter, daughter’s daughter, sister and sister’s son in the
order so specified, without making any modifications in the fundamental
concepts underlying the textual Hindu Law relating to inheritance; only
D difference being that while before the Act, they succeeded as bandhus,
under the Act, they inherited as ‘gotra sapindas’.
50. The Mitakshara law also recognises inheritance by succession
but only to the property separately owned by an individual, male or female.
Females are included as heirs to this kind of property by Mitakshara
E law. Before the Hindu Law of Inheritance (Amendment) Act 1929, the
Bengal, Benares and Mithila sub-schools of Mitakshara recognised only
five female relations as being entitled to inherit namely - widow, daughter,
mother paternal grandmother and paternal great-grand mother. The
Madras sub- school recognized the heritable capacity of a larger number
of females heirs that is of the son’s daughter, daughter’s daughter and
F the sister, as heirs who are expressly named as heirs in Hindu Law of
Inheritance (Amendment) Act, 1929. The son’s daughter and the
daughter’s daughter ranked as bandhus in Bombay and Madras. The
Bombay school which is most liberal to women, recognized a number of
other female heirs, including a half -sister, father’s sister and women
G married into the family such as stepmother, son’s widow, brother’s widow
and also many other females classified as bandhus. From the above
discussions, it is abundantly clear that a daughter was in fact capable of
inheriting the father’s separate estate.

8
H (1863) 9 MIA 539
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 295
[KRISHNA MURARI, J.]

Judicial Precedents A
51. Privy Council has delivered some notable judgments on the
issue arising for adjudication in the case at hands. Reference may be
made to the case of Katama Natchiar Vs. Srimut Rajah Mootoo Vijaya
Raganadha Bodha Gooroo Sawmy Periya Odaya Taver8. The dispute
in the appeal before the Privy Council was in respect of the Right of B
Inheritance of Shivagunga Zamindary, situate in the District Maduaa,
Presidency of Madras. The Privy Council after noticing the facts of the
long litigation and the three suits filed between the parties, which were
dismissed by the Provincial Court and the appeal was filed in each of the
three suits which were heard together and disposed of by the decree of
the Sudder Court. The Privy Council noted the following arguments C
advanced before it, by Anga Moottoo Natchiar, as under :-
“She submitted as in issue of fact that the Zamindar had been
acquired by the sole exertions and merits of her husband;
and as an issue of law that what is acquired by a man, without
employment of his patrimony, shall not be inherited by her D
brothers and co-heirs, but if he dies without male issue, shall
descend to his widows, his daughters and the parents, before
going to her brothers or remoter collaterals.
52. After analysing the factual aspects in details, the Privy Council
posed three questions as under :- E
“The substantial contest between the appellant and the respondent
is, as it was between Anga Mootoo Natchiar and the respondent’s
predecessors, whether the Zamindary ought to have descended
in the male and collateral line; and the determination of this issue
depends on the answers to be given to one or more of the following F
questions :
(i) Were Gowery Vallabha Taver and his brother, Oya Taver,
undivided in estate, or had a partition taken place between
them?
(ii) If they were undivided, was the zemindary the self- acquired G
and separate property or Gowery Vallabha Taver? and if
so-
(iii) What is the course of succession according to the Hindoo
Law of the South of India of such an acquisition, where the
H
296 SUPREME COURT REPORTS [2022] 1 S.C.R.

A family is in other respects an undivided family?
53. Insofar as, the first question is concerned, the Privy Council
did not disturb the findings in the decree of 1847 that Gowery Vallabha
Taver and his brother, after the acquisition by the former of the zemindary,
lived very much as if they were separate. The second question was
B answered in affirmative. With respect to the third question, the Privy
Council observed as under :-
“The third question is one of nicety and of some difficulty.
The conclusion which the Courts in India have arrived at
upon it, is founded upon the opinion of the Pundits, and upon
C authorities referred to by them. We shall presently examine
those opinions and authorities; but before doing so, it will be
well to consider more fully the law of inheritance as it prevails
at Madras and throughout the southern parts of India, and
the principles on in these parts of India is to be found in the
Mitacshara, and in ch.II., sec. 1, of that work the right of
D windows to inherit in default of male issue is fully considered
and discussed.
The Mitacshara purports to be a commentary upon the earlier
institutes of Yajnyawalcya; and the section in question begins
by citing a text from that work, which. Affirms in general terms
E the right of the window to inherit on the failure of male issue.
But then the author of the Mitacshara refers to various
authorities which are apparently in conflict with the doctrines
of Yajnyawalcya, and, after reviewing those authoritesi, seeks
to re3concile them by coming to the conclusion “that a wedded
wife, being chaste, takes the whole estate of a man, who,
F
being separated from his co- heirs, and not subsequently re-
united with them, dies leaving no male issue,” This text, it is
true, taken by itself, does not carry the rights of widows to
inherit beyond the cases in which their husbands have died
in a state of separation from their co-heirs, and leaving no
G male issue; but it is to be observed that the text is propounded
as a qualification of the larger and more general proposition
in favour of widows; and, consequently, that in construing it,
we have to consider what are the limits of the qualification,
rather than what are the limits of the right. Now, the very
terms of the text refer to eases in which the whole estate of
H
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 297
[KRISHNA MURARI, J.]

the deceased has been his separate property, and, indeed, A
the whole chapter in which the text is contained, seems to
deal only with cases in which the property in question has
been either wholly the common property of a united family,
or wholly the separate property of the deceased husband We
find no trace in it of a case like that before us, in which the
B
property in question may have been in part the common
property of a unit4ed family, and in part the separate
acquisition of the deceased; and it cannot, we think, be
assumed that because widows take the whole estates of their
husbands when they have been separated from, and not
subsequently re-united with, their co-heirs, and have died C
leaving n™ male issue, they cannot, when their husbands
have not been so separated, take any part of their estates,
although it may have been their husband’s separate
acquisition. The text, therefore, does not seem to us to govern
this case.
D
There being then no positive text governing the case before
us, we must look to the principles of the law to guide us in
determining it. It is to be observed, in the first place, that the
general course of descent of separate property according to
the Hindoo law is no disputed. It is admitted that, according
E
to that law, such property descends to windows in default of
male issue. It is upon the Respondent, therefore, to make out
that the property here in question, which was separately
acquired, does not descend according to the general course
of the law. The way in which this is attempted to be done, is
by showing a general state of co- parcenaryship as to the F
family property; but assuming this to have been proved, or to
be presumable from there being no disproof of the normal
state of co- parcenaryship, this proof, or absence of proof,
cannot alter the case, unless it be also the law that there cannot
be property belonging to a member of a united Hindoo family,
G
which descends in a course different from that of the descent
of a. share of the property held in union; but such a
proposition is new, unsupported by authority, and at variance
with principle. Thai two courses of descent may obtain on a
part division of join property, is apparent from a passage in
H
298 SUPREME COURT REPORTS [2022] 1 S.C.R.

A W.H. Macnaghten’s “Hindu Law,” title “Partition,” vol. I. p.
53, where it is said as follows: “According to the more correct
opinion, where there is an undivided residue, it is not subject
to the ordinary rules of partition of join property; in other
words, if at a general partition any part of the pro-perty was
left joint, the widow of a deceased brother will not participate,
B
notwithstanding the separation, but such undivided residue
will go exclusively to the brother.”
Again, it is not pretended that on the death of the acquirer. of
separate property, the separately acquired property falls into
the common stock, and passes like ancestral property. On the
C
contrary, it is admitted that if the acquirer leaves male issue,
it will descend as separate property to that issue down to the
third generation. Although, therefore, where there is male issue,
the family property and the separate property would not
descend to different persons, they would descend in a different
D way, and. with different con- sequences; the sons taking their
father’s share in the ancestral property subject to all the rights
of the co- parceners in that property, and his self-acquired
property free from those rights. The course of succession would
not be the same for the family and the separate estate; and it
is clear, therefore, that, according to the Hindoo law, there
E
need not be unity of laeirship.
But to look more closely into the Hindoo law. When property
belonging in common to a united Hindoo family has been
divided, the divided shares go in the general course of descent
of separate property. Why, it may well be asked, should not
F the same rule apply to property which from its first acquisition
has always been separate We have seen from the passage
already quoted from Macnaghten’s “Hindu Law,” that where
a residue is left un-divided upon partition, what is divided
goes as separate property; what is undivided follows the
G family property; that which remains as it was, devolves in the
old line; that which is changed and becomes separate, devolves
in the new line. In other words, the law of succession follows
the nature of the property and of the interest in it.
Again, there are principles on which the rule of succession
H according to the Hindoo law appears to depend: the first is
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 299
[KRISHNA MURARI, J.]

that which determines the right to offer the funeral oblation, A
and the degree in which the person making the offering is
supposed to minister to the spiritual benefit of the deceased;
the other is an assumed right of survivorship. Most of the
authorities rest the uncontested right of widows to inherit the
estates of their husbands, dying separated from their kindred,
B
on the first of these principles (1 Strange’s “Hindu Law,” p.
135). But some ancient authorities also invoke the other
principle.
Again, the theory which would restrict the preference of the
co-parceners over the windows to partible property is not
only, as is shown above, founded upon an intelligible C
principle, but reconciles the law of inheritance with the law
of partition. These laws, as is observed by Sir Thomas Strange,
are so intimately connected that they may almost be said to be
blended together; and it is surely not consistent with this
position that co-parceners should take separate property by D
descent, when they take no interest in it upon partition. We
may further observe, that the view which we have thus
indicated, of the Hindoo law is not only, as we have shown,
most consistent with its principles, but is also most consistent
with convenience.”
54. On a complete reading of the judgment of Privy Council in E
extenso, the following legal principles are culled out:-
A) That the General Course of descends of separate property
according to the Hindu Law is not disputed it is admitted
that according to that law such property (separate property)
descends to widow in default of male issue. F
B) It is upon Respondent therefore to make out that the property
herein question which was separately acquired does not
descends according to the general Course of Law.
C) According to the more correct opinion where there is
undivided residue, it is not subject to ordinary rules of partition G
of joint property, in other words if it a general partition any
part of the property was left joint the widow of the deceased
brother will not participate notwithstanding with separation
but such undivided residue will go exclusively to brother.
D) The law of succession follows the nature of property and H
300 SUPREME COURT REPORTS [2022] 1 S.C.R.

A of the interest in it.
E) The law of partition shows that as to the separately acquired
property of one member of a united family, the other
members of the family have neither community of interest
nor unity of possession.
B F) The foundation therefore of a right to take such property
by survivorship fails and there are no grounds for postponing
the widow’s right any superior right of the co-parcenars in
the undivided property.
G) The Hindu Law is not only consistence with this principle
C but is also most consistent with convenience.”
55. Another case of the Privy Council is Sivagnana Tevar and
Anr. Vs. Periasami & Ors.9. The aforesaid case, before the Privy Council
was in continuity and of the consequence of the previous case Katama
Natchiar (Supra) but of a different branch of the family. In the said
D case, it was observed as under :-
“Their Lordships then have come to the conclusion that, as
between the descendants of Muttu Vaduga and Dhorai
Pandian, the palayapat was the separate property of the latter;
that on the death of Dhorai Pandian, his right, if he had any
E left undisposed of in the property, passed to his widow,
notwithstanding the undivided status of the family; and that
therefore, the case was one to which the rule of succession
affirmed in the Shivagunga case (Supra) applies.”
56. The principles of law which can be deduced from reading of
F the aforesaid judgment can be summarized as under:-
“The law laid down in the case of Katama Natchiar Vs. Srimut
Rajah Mootoo Vijaya Raganadha Bodha Gooroo Sawmy
Periya Odaya Taver, that succession in the case of Hindu
male dying intestate is to be governed by inheritance rather
G than survivorship, is reaffirmed.
In the absence of male member, the property devolves upon
widow and thereafter to daughter.”

9
1878 (1) ILR Madras 312
10
H AIR 1976 ALL 195
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 301
[KRISHNA MURARI, J.]

57. A Full Bench of Allahabad High Court, in the case of A
Ghurpatari & Ors. Vs. Smt. Sampati & Ors.10, while considering the
question whether a custom under which daughters are excluded from
inheriting the property of their father can by implication exclude the
daughters’ issues both males and females, also from such inheritance,
made the following observations in respect of Right of Inheritance of a
B
widow or a daughter of a male Hindu dying intestate :-
“17. The rules relating to inheritance by widow and daughter
were enunciated in the ancient past by various sages and
were ultimately elaborated by Vijnyaneshwara in Mitakshara.
We may quote from Colebrooke’s translation.”
C
Katyayan said “let the widow succeed to her husband’s wealth,
provided she be chaste; and in default of her let the daughter
inherit if married.” Brihaspati Said, “the wife is pronounced
successor to the wealth of her husband; and in her default
the daughter; as a son so does the daughter of a man proceed
from his several limbs, how then shall any other person take D
the father’s wealth”? Vishnu laid down, “if a man leaves
neither son, nor son’s son, nor wife, nor female issue, the
daughter’s son shall take his wealth, for in regard to the
obsequies of ancestors, daughter’s son is considered as son’s
son.” Manu likewise declared that “by a male child, who were E
daughter whether formally appointed or not, shall produce
from a husband of an equal class, the maternal grandfather
becomes the grand sire of son’s son, let that son give the
funeral oblation and possess the inheritance”. The right of
daughter and daughter’s son to succeed to the property was
thus well recognized in the Mitakshara Law. The daughter F
ranks fifth in the order of succession and the daughter’s son
ranked sixth.”
58. Thereafter, the Court proceeded to consider the question of
custom prevalent in a particular sect and whether they will have the
sources of law with which we are not concerned in the case at hands. G
59. The Hindu Law of Inheritance (Amendment) Act II of 1929
(hereinafter called as ‘the Act of 1929), for the first time entitled the
daughter’s daughter, subject to a special family or local custom, to succeed

11
Mulla’s Principles of Hindu Law (14 th Edition) H
302 SUPREME COURT REPORTS [2022] 1 S.C.R.

A to the property of a male Hindu governed by Mitakshara Law. Daughter’s
daughter then ranked 13th-B in the order of succession. The order of
succession to the estate of a Hindu dying interstate and governed by
Mitakshara Law are set out in Paragraph 43 of Mulla’s Principles of
Hindu Law11 as under :-
B “The Sapindas succeeded in the following order :-
1-4 A son, grandson (son’s son) and great grandson (son’s
son’s son) and (after 14th April, 1937) widow, predeceased
son’s widow, and predeceased son’s son’s widow.
5. Daughter.
C
6. Daughter’s son
13. Father’s father
13.A Son’s daughter’s
13.B Daughter’s daughter
D
60. In the case of Lal Singh & Ors. Vs. Roor Singh & Ors.12, it
was held that daughters and daughters son have a preferential claim to
the non-ancestral property as against the collaterals.
61. In the case of Gopal Singh & Ors. vs. Ujagar Singh &
E Ors.13, it was observed by this Court that the daughter succeeds to the
self- acquired property of her father in preference to collaterals. This
Court proceeded to rely upon the following observation in Rattigan’s
Digest to ‘Customary Law’ :-
“In regard to the acquired property of her father, the daughter
is preferred to the collaterals.”
F
62. Reference may also be made to the decision of Bombay High
Court in Devidas & Ors. Vs. Vithabai & Anr.14. In the said case, one
Arujna died in 1936, when succession opened and while determining the
shares during partition daughter of one pre-deceased sons of Arjuna
namely, Vithabai was held entitled for a share. The name of Vithabai
G
was removed from revenue record. She filed a suit for declaration
claiming 1/3rd share with other reliefs. Trial Court dismissed the suit.

12
55 Punjab Law Reporter 168 at 172
13
AIR 1954 SC 579
14
H 2008 (5) Mh.L.J. 296
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 303
[KRISHNA MURARI, J.]

The First Appellate Court held that plaintiff, Vithabai, being daughter of A
Zolu was a Class-I heir and thus, was entitled to 1/3rd share and
accordingly, reversed the decree. The matter was carried in second
appeal. The High Court while reversing the decree of Lower Appellate
Court and confirming that of the Trial Court observed as under :-
“12. Zolu, when died in 1935 was joint with his father and B
brothers. Therefore, his share in the coparcenery would
devolve by survivorship and not by succession. Zolu did not
hold any separate property admittedly and therefore, there
was no question of property passing over by succession. The
following illustration to Section 24 in Mulla’s Hindu Law 19th
Edition shall be enough to unfortunately negative the claim C
of the plaintiff. The case is squarely covered by this
illustration.
(1) A and B two Hindu brothers, governed by the Mitakshara
School of Hindu Law, are members of a joint and undivided
family. A dies leaving his brother B and a daughter. A’s share D
in the joint family property will pass to his brother, the surviving
coparcener, and not to his daughter. However, if A and B were
separate, A’s property would on his death pass to his daughter
as his heir.
The plaintiff due to the above proposition of law was not E
entitled to succeed to the estate of her father. The persons on
whom the share of Zolu devolved were his brothers and father
by survivorship. The share could not devolve on the daughter
by succession since the plaintiff herself pleads that the
property was joint and there was no partition. It was, therefore,
F
not a separate estate of Zolu so that rule of succession could
be applied. The property therefore passed over by
survivorship in favour of brothers and father who were
coparceners.”
63. The 174th Law Commission in its report on ‘Property Rights
of Women’ while proposing reforms under the Hindu Law has observed G
as under :-
“1.3.3 The Mitakshara law also recognising inheritance by
succession but only to the property separately owned by an
individual, male or female. Females are included as heirs to
H
304 SUPREME COURT REPORTS [2022] 1 S.C.R.

A this kind of property by Mitakshara law. Before the Hindu
Law of Inheritance (Amendment) Act 1929, the Bengal,
Benares and Mithila sub-schools of Mitakshara recognised
only five female relations as being entitled to inherit namely;-
widow, daughter, mother, paternal grandmother, and paternal
great-grand mother.
B
1. The Madras sub-schools recognised the heritable capacity
of a larger number of females heirs that is of the son’s
daughter, daughter’s daughter and the sister as heirs were
expressly named as heirs in Hindu Law of Inheritance
(Amendment) Act,1929.
C
2. The son’s daughter and the daughter’s daughter ranked
as Bandhus in Bombay and Madras. The Bombay School
which is most liberal to women, recognised a number of other
female heirs, including a half sister, father’s sister and women
married into the family such as step-mother, son’s widow,
D brother’s widow and also many other females classified as
Bandhus.”
64. From the above discussions, it is clear that ancient text as also
the Smritis, the Commentaries written by various renowned learned
persons and even judicial pronouncements have recognized the rights of
E several female heirs, the wives and the daughter’s being the foremost of
them.
65. The rights of women in the family to maintenance were in
every case very substantial rights and on whole, it would seem that
some of the commentators erred in drawing adverse inferences from
F the vague references to women’s succession in the earlier Smritis. The
views of the Mitakshara on the matter are unmistakable. Vijneshwara
also nowhere endorses the view that women are incompetent to inherit.
Our Analysis

G 66. Right of a widow or daughter to inherit the self-acquired
property or share received in partition of a coparcenary property of a
Hindu male dying intestate is well recognized not only under the old
customary Hindu Law but also by various judicial pronouncements and
thus, our answer to the question Nos. 1 and 2 are as under :-

H “If a property of a male Hindu dying intestate is a self-
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 305
[KRISHNA MURARI, J.]

acquired property or obtained in partition of a co-parcenery A
or a family property, the same would devolve by inheritance
and not by survivorship, and a daughter of such a male
Hindu would be entitled to inherit such property in preference
to other collaterals.”
B
67. In the case at hands, since the property in question was
admittedly the self-acquired property of Marappa Gounder despite the
family being in state of jointness upon his death intestate, his sole surviving
daughter Kupayee Ammal, will inherit the same by inheritance and the
property shall not devolve by survivorship.
C
68. Insofar as, question no. 3 is concerned under the old customary
Hindu Law, there are contradictory opinions in respect of the order of
succession to be followed after the death of such a daughter inheriting
the property from his father. One school is of the view that such a daughter
inherits a limited estate like a widow, and after her death would revert
back to the heirs of the deceased male who would be entitled to inherit D
by survivorship. While other school of thought holds the opposite view.
This conflict of opinion may not be relevant in the present case inasmuch
as since Kupayee Ammal, daughter of Marappa Gounder, after inheriting
the suit property upon the death of Marappa Gounder, died after
enforcement of Hindu Succession Act, 1956 (hereinafter referred to as
E
‘The Act of 1956’), which has amended and codified the Hindu Law
relating to intestate succession among Hindus. The main scheme of this
Act is to establish complete equality between male and female with
regard to property rights and the rights of the female were declared
absolute, completely abolishing all notions of a limited estate. The Act
brought about changes in the law of succession among Hindus and gave F
rights which were till then unknown in relation to women’s property.
The Act lays down a uniform and comprehensive system of inheritance
and applies, inter-alia, to persons governed by the Mitakshara and
Dayabhaga Schools and also to those governed previously by the
Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies
G
to every person, who is a Hindu by religion in any of its forms including
a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or
Arya Samaj and even to any person who is Buddhist, Jain or Sikh by
religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by
religion. Section 14 of the Act of 1956 declares property of a female
H
306 SUPREME COURT REPORTS [2022] 1 S.C.R.

A Hindu to be her absolute property, which reads as under:-
“14. Property of a female Hindu to be her absolute property.-
(1) Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall
be held by her as full owner thereof and not as a limited
B owner.
Explanation.—In this sub-section, “property” includes both
movable and immovable property acquired by a female Hindu
by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
C person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or
by prescription, or in any other manner whatsoever, and also
any such property held by her as stridhana immediately before
the commencement of this Act.
D (2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under
an award where the terms of the gift, will or other instrument
or the decree, order or award prescribe a restricted estate in
such property.”
E
69. The legislative intent of enacting Section 14(I) of the Act was
to remedy the limitation of a Hindu woman who could not claim absolute
interest in the properties inherited by her but only had a life interest in
the estate so inherited.
F 70. Section 14 (I) converted all limited estates owned by women
into absolute estates and the succession of these properties in the absence
of a will or testament would take place in consonance with Section 15 of
the Hindu Succession Act, 1956, which reads as follows:-
“Section -15. General rules of succession in the case of female
Hindus.—
G
(1) The property of a female Hindu dying intestate shall
devolve 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;
H
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 307
[KRISHNA MURARI, J.]

(b) secondly, upon the heirs of the husband; A
(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-section (1)- B
(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-
section (1) in the order specified therein, but upon the heirs C
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-section (1) in the order specified therein, D
but upon the heirs of the husband.”
Section 16 – Order of Succession and manner of distribution
among heirs of a female Hindu. –
The order of succession among the heirs referred to in Section E
15 shall be, and the distribution of the intestate’s property
among those heirs shall take place, according to the following
rules, namely:—
Rule 1.—Among the heirs specified in sub-section (1) of Section
15, those in one entry shall be preferred to those in any F
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 G
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 (e) of sub- section
(1) and in sub-section (2) to Section 15 shall be in the same
H
308 SUPREME COURT REPORTS [2022] 1 S.C.R.

A 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.”
B 71. The scheme of sub-Section (1) of Section 15 goes to show
that property of Hindu females dying intestate is to devolve on her own
heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15
(1). Sub- Section (2) of Section 15 carves out exceptions only with regard
to property acquired through inheritance and further, the exception is
confined to the property inherited by a Hindu female either from her
C father or mother, or from her husband, or from her father-in-law. The
exceptions carved out by sub-Section (2) shall operate only in the event
of the Hindu female dies without leaving any direct heirs, i.e., her son or
daughter or children of the pre-deceased son or daughter.
72. Thus, if a female Hindu dies intestate without leaving any
D issue, then the property inherited by her from her father or mother would
go to the heirs of her father whereas the property inherited from her
husband or father-in-law would go to the heirs of the husband. In case,
a female Hindu dies leaving behind her husband or any issue, then Section
15(1)(a) comes into operation and the properties left behind including
E the properties which she inherited from her parents would devolve
simultaneously upon her husband and her issues as provided in Section
15(1)(a) of the Act.
73. The basic aim of the legislature in enacting Section 15(2) is to
ensure that inherited property of a female Hindu dying issueless and
F intestate, goes back to the source.
74. Section 15(1)(d) provides that failing all heirs of the female
specified in Entries (a)-(c), but not until then, all her property howsoever
acquired will devolve upon the heirs of the father. The devolution upon
the heirs of the father shall be in the same order and according to the
G same rules as would have applied if the property had belonged to the
father and he had died intestate in respect thereof immediately after her
death. In the present case the since the succession of the suit properties
opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply

15
H 1992 Supp. (3) SCC 108
ARUNACHALA GOUNDER (DEAD) BY LRS. v. PONNUSAMY 309
[KRISHNA MURARI, J.]

and thereby Ramasamy Gounder’s daughters being Class-I heirs of their A
father too shall be heirs and entitled to 1/5 th share each in the suit
properties.
75. This Court while analysing the provisions of Sections 15 & 16
of the Act in the case of State of Punjab Vs. Balwant Singh & Ors.15,
has held as under:- B
“7. Sub-section (1) of Section 15 groups the heirs of a female
intestate into five 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 C
simultaneously. Sub- section (2) of Section 15 begins with a
non-obstante clause providing that the order of succession is
not that prescribed under sub-section (1) of Section 15. It
carves out two exceptions to the general order of succes-
sion provided under sub-section (1). The first exception relates
to the property inherited by a female Hindu from her father D
or mother. 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 in sub-section (1) in the order specified therein,
but upon the heirs of the father. The second exception is in E
relation 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 F
husband.
8. The process of identifying the heirs of the intestate under
sub-section (2) of Section 15 has been explained in Bhajya v.
Gopikabai and Anr. [1978] 3 SCR 561. There this Court
observed that the rule under which the property of the intestate G
would devolve is regulated by Rule 3 of Section 16 of the Act.
Rule 3 of Section 16 provides that “the devolution of the
property of the intestate on the heirs referred to in clauses

16
(2002) 1 SCC 210 H
310 SUPREME COURT REPORTS [2022] 1 S.C.R.

A (b), (d) and (e) of 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 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”.
B
76. Again in the case of Bhagat Ram (dead) by LRs. Vs. Teja
Singh (dead) by LRs.16, a two-Judge Bench of this Court analysing the
provisions of Sections 14, 15 and 16 of the Act reiterating the view taken
in the State of Punjab Vs. Balwant Singh & Ors.(Supra), observed as
under :-
C
“The source from which she inherits the property is always
important and that would govern the situation. Otherwise
persons who are not even remotely related to the person who
originally held the property would acquire rights to inherit
that property. That would defeat the intent and purpose of
D sub-Section 2 of Section 15, which gives a special pattern of
succession. “
77. Applying the above settled legal proposition to the facts of the
case at hands, since the succession of the suit properties opened in 1967
upon death of Kupayee Ammal, the 1956 Act shall apply and thereby
E Ramasamy Gounder’s daughter’s being Class-I heirs of their father too
shall also be heirs and entitled to 1/5th Share in each of the suit properties.
78. Unfortunately, neither the Trial Court nor the High Court
adverted itself to the settled legal propositions which are squarely
applicable in the facts and circumstances of the case.
F
79. Thus, the impugned judgment and decree dated 01.03.1994
passed by the Trial Court and confirmed by the High Court vide judgment
and order dated 21.01.2009 are not liable to be sustained and are hereby
set aside.
80. The appeal, accordingly, stands allowed and the suit stands
G
decreed.
81. Let a preliminary decree be drawn accordingly. It shall be
open to the parties to invoke the jurisdiction of appropriate Court for
preparation of final decree in accordance with law.
H 82. However, in the facts and circumstances of the case, we do
not make any order as to costs.

Devika Gujral Appeal allowed.