Whether married woman is entitled to get share in property of relatives of husband?
After setting out these undisputed facts, we have to first dispose of the legal submission advanced on behalf of the appellant that after the death of Baburao during the pendency of the first appeal, the entire appeal had abated and the judgment rendered by the learned Single Judge of this Court is void. This argument is met by the submission that Parwatibai being the paternal aunt of Baburao was on record and, therefore, the appeal would not abate and more inadvertent omission to bring the fact of death on record and omitting the name of Baburao would not render the judgment of the learned Single Judge as void. We may state that considerable arguments were advanced as to whether paternal aunt could succeed under the provisions of the Hindu Succession Act to the interest of the propositus like Baburao. In this regard, the abate is raised on the basis that she does not fall within the definition of agnate or cognate and is not a person of heirs of Class I and Class II specified under section 8 of the Hindu Succession Act. It is submitted that the term "agnate" having been defined only takes in relatives "by" "blood" or in other words, those who are biologically or genetically related to each other and not those who are related by marriage in the family. Therefore, the submission is that whatever may be the position of law before the Act was made by the Parliament, the female like Parwatibai who gets related to the father's brother could not be an agnate within the contemplation of section 3(1)(a) of the Act.
9. Giving careful consideration to various facts of law and the position of a widow that becomes a kinsmaid in a Hindu family by marriage, we find it difficult to accede to the submission that the definition as enacted in section 3(1)(a) should be so interpreted so as to exclude a relative of the type like paternal aunt. No doubt, the provisions of the Hindu Succession Act were meant to codify the law relating to intestate succession among the Hindus and to achieve uniformity and certainty about various otherwise nebulous and shifting matters. Need to have legislation doing away and dispelling all uncertainties has, however, to be understood against the backdrop of the existing interpretative system of personal law. It would not be appropriate to being with any legislative premise that the term "related by blood" has been introduced in any narrow sense. Effort will have to be made to reach its applicative connotation. Before we closely examine the contemplation of the word "agnate", we may indicate that as far as Mitakshara law applicable to Bombay School was concerned, position of the paternal aunt was that of the recognised heir, she being the Gotroja-sapinda. See Lallubhai Bapubhai and others v. Mankuvarbai and others, I.L.R. Bom 388 , affirmed in Lallubhai Bapubhai and others v. Cassibai others, I.L.R. Bom P C 110 and followed in Rachava v. Kalingapa, I.L.R.16 Bom 716, and Kashibai v. Moreshvar Raghunath, I.L.R. 35 Bom 389; and also Raghunath v. Lakshmibai, 37 BomLR 150; and Pranjivan v. Bai Bhikhi, 23 BomLR. 553.
10. In Lallubhai Bapubhai's case (supra), the Privy Council observed that by the Hindu Law in force in Western India the widow of a collateral relation, although she is not specified in the texts among the heirs to members of the husband's family, may come into the succession as one of the classes of gotraja sapindas of that family. The right to inherit in the classes of gotraja sapindas is to be determined by family relationship, or the community of corporal particles, and not only by the capacity of performing funeral rites. The principle of the general incapacity of women for inheritance did not stand in the way of the widow's claim subject, however, to the fact being established that she is the gotraja sapinda of her husband's family. It was further stated that as a result of the marriage, the wife enters the gotra of her husband, and in some sense becomes a sapinda of his family. As to the concept of sapinda it was approval observed that the doctrine depended upon community of corporal particles, and not upon the presentation of funeral offerings to the pitria.
11. Thus, the capacity of the widow and also of the paternal aunt (cases supra) has been founded on distinct principles flowing from the interpretation of the texts governing the personal law of Hindus, being entry into kinship or gotra and partaking into the corporal particles. Both these were the resultants of the union brought about by marriage into family. Effect of a Hindu marriage which brings about a holy union of man and woman is to forge distinctly a family relation having regard to the spouse leading to mixing of corporal particles. After the marriage, the wife becomes an integral part of her husband's family. We have the observations of the Supreme Court on this aspect that bring out the distinctive character of Hindu marriage, in the case of V. Tusamma v. V. Sesha Reddi, A.I.R. 1977 S C 1944, it observed :---
"In order to determine this factor we have to look to the concept of a Hindu marriage. Under the Shastric Hindu Law, a marriage, unlike a marriage under the Mohammadan Law which is purely contractual in nature, is a sacrament---a religious ceremony which results in a sacred and holy union of man and wife by virtue of which the wife is completely transplanted in the house hold of her husband and takes a new birth as a partner of her husband becoming a part and parcel of the body of the husband. To a Hindu wife her husband is her God and her life becomes one of selfless service and unstinted devotion to her husband. She not only shares the life and love, the joys and sorrows, the troubles and tribulations of her husband but becomes an integral part of her husband's life and activities... ... ...As the wife is in a sense a part of the body of her husband. She becomes co-owner of the property of her husband though in a subordinate sense." (Emphasis provided).
12. Conceptually, therefore, a Hindu marriage as far as the wife is concerned clearly brings out consanguine results, the wife merging and sharing the particles of the body of her husband and as such that of the common ancestor. Such kinship or consanguinity conceptually as well as physically cannot be less than of the blood relationship.
13. Sapinda as understood by the applicative pronouncements and age old doctrines available under the Hindu Law is clearly equivalent to the relationship that comes by blood and gotraja is indicative of the kinship of the relatives. Not only juridically but sociologically, relations inter se in a Hindu family have a nuclear appearance, in that it has a male descent and follow the lines traced through the male line. That may emphasise, no doubt, the biological preference towards male than female, but in the matters of law regarding kinship, such preferences will have restrictive application, for incidents flowing from accepted modes of admitting persons into kinship would necessarily add new lines or bonds of equal validity and accepted effectiveness. Marriage is not only social but religious fact to a Hindu. It distinctively brings about union of two persons involving acceptance of a female into the family of the mala spouse. Relation that ensues is not restricted to male that marries but to the entire family of the male. Married wife in a family thus becomes related to it wholly through her male spouse.
14. The term "agnate" in common parlance simply indicates relatives whose kinship is traceable exclusively through males or any paternal kinsmen as contracted with "cognate" as indicative of those relatives generally on the mother's side. We have little hesitation in holding that a father's brother's wife would be related to the propositus like Baburao through his father and as such would be "an agnate" in common parlance. Even turning to the definitions enacted by the Hindu Succession Act, 1956, we do not find any indication to exclude a father's brother's widow from agnate by reason of the text of that definition.
15. We may usefully extract the following provisions of the Act to understand reasonably the scheme in this regard :---
"3. (1) In this Act, unless the context otherwise requires,---
(a) 'agnate'---one person is said to be an 'agnate' of another if the two are related by blood or adoption wholly through males;
.... ..... ........
(C) 'cognate'---one person is said to be a 'cognate' of another if the two are related by blood or adoption but not wholly through males;
.... ..... ........
(j) 'related' means related by legitimate kinship;
The provisions of section 8 of the Hindu Succession Act along with the relative entry of the Schedule read as follows :---
"8 The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :---
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs being the relatives specified in Class II of the Schedule :
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
12. Order of succession among agnates and cognates---The order of succession among agnates or congnates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder :---
Rule 1---Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2---Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
Rule 3---Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously."
16. With regard to the female heirs, historically the applicative law was not settled and was riddled with territorial differences about the interpretation and application of holy texts, though, as far as Bombay School and application of Mitakshare were concerned, the position had to be settled by judicial interpretations admitting no doubt that a paternal aunt would be the gotraja sapinda and as such the heir of agnatic class. In the face of law's post can it be said that by introducing the definition, it was intended to do away with the class of heirs like the one with whom we are concerned ? No doubt, in the matter of interpretation, mere matters of public policy or mere matter of supposed hardship would not be a valid ground for enlarging its scope, for the letters of the law as enacted will have to be given effect to. If the words "related" by blood" be indicative only of relationship "by birth" in the family and no other, then, obviously, the relation that comes by marriage will have to be excluded. If, on the other hand, the terms "related by blood" is capable of yielding meaning in consonance with the concept of a Hindu marriage and the results thereof as including those that also become related by marriage and acquire kinship in the family, then we would be right in keeping consistency and continuity by including within that term the relationship that results from marriage.
17. What then is the meaning of the word "blood" ? Does it signify only the vital fluid that sustains the life or is it also indicative of relationship which results in kinship by known and accepted modalities ? There are various meanings assigned to the word "blood", including the one biologically attributed. From Webster's Third new International Dictionary, pages 236 and 237, the following relevant meanings can be extracted :
"Blood" : I a. the fluid that circulates in the principal vascular system of vertebrate animals carrying nourishment and oxygen to all parts of the body and bringing away waste products for excretion and that consists of a liquid plasma containing dissolved nutrients, waste products and other substances and suspended red blood cells, leukocytes, and blood platelet---see Circulation, Respiration; Coagulation; 2a, blood regarded as a vital principle :Lifeblood; broadly Life, b : human blood regarded as a hereditary differentiating factor typical of and specific to a given family, stock lineage, or race (English---) : sap : the national royal---used with the (a prince of the---), c : the whole body of physical traits passed from parent to offspring whether in men, animals, or plant d : relationship by decent from a common ancestor (the Delawere grape shows a strong strain or vinifora---) : Kinship Consanguinity (---is thicker than water), a : person related through a common familial or racial descent : Kindred, Lineage, Stock, Race; also obs : Kinsman, Relative."
The connotation of the word, therefore, is not merely biological but includes familial, racial and other recognised modes of kinship amongst men. It is futile to submit that the words "related by blood" should be equated with "related by birth", though birth may be the primary incident of relationship between the two human beings. That is, however, of the only incident that brings about human relations into existence. When community of men develops and social relationship evolves, manifold relations come into being and in the context of relations, when the word "blood" is used, it suitably indicates the relationship by descent from a common ancestor or a kinship or consanguinity amongst a recognised social group. Marriage is an acknowledged social form bringing two beings together amongst the society of Hindus as a result of which the female enters the family of the male and becomes kindred of the family of the male and as such gets related as a kin of that family having common ancestor in the husband's family. The term "by blood", therefore, in our view, has no biological or genetic limitation, but, including that, has a wider reach in the context of the personal law of Hindus and takes in female that enters by marriage the family of the male. Only because after the words "by blood", the legislature has put the words "or adoption", thus indicating another legal form by which a person becomes the kin in the family, it is not possible to exclude the marriage from the connotation of the term "by blood". To have the relationship of the kind of agnate, it follows that relationship should arise wholly through males and should be a relationship of blood. As we have indicated, even prior to the present enactment, the applicative law held that as a result of marriage, a widow truly became gotraja sapinda in her husband's family. The principle on the basis of which the applicative judgments were rendered was clearly the principle to hold that by marriage the wife shared the community of the common particles of the body and was as such a relative "by blood".
18. A submission was made that this would lead to enlarging the class of heirs even from wife's side and difficulties would arise in applying Rule 12, for whoever upon this interpretation is related to the wife would also be related to the husband. This submission is fallacious for two reasons. Firstly, we have held that in the case of a female married into the family, relationship by blood arises because of the marriage and secondly, she becomes kin in the family. Her relations in her original family would not answer any of these tests. Hardly, therefore, there is any scope for any such apprehension. We have preferred to put this somewhat comprehensive interpretation, for in our view, that better furthers the scheme available in section 8 of the Hindu Succession Act. If we were not to recognise the effect of a Hindu Marriage in this manner, obviously the cases will arise and the present one will be one of them where succession would fail, though a nearer relative from the family would be available. When succession is laid down by statutory enactment, we should lean to interpret it so as to avoid such a result. The scheme of section 8 of the Hindu Succession Act shows that with regard to a male Hindu dying intestate, it codifies the Rules of succession and, by reference to the Schedule, states the heirs who will take the intestate succession of a male Hindu. The Schedule which is to be treated as part of section 8 describes several relations with reference to the male whose intestate succession is being provided for. Reference to relatives in class I and class II clearly shows that the entries therein are qualifying or descripttive entries having references to the relation of the heirs described therein and the person whose succession is being governed. In this regard, the legislature while describing the heirs in class I and class II has not in any manner disregarded the relations that arise because of marriage. On the other hand, not only the relation by birth but also kinship that arises because of marriage appear to be the predominating considerations in the choice of the heirs grouped under Class I and Class II. The heirs in class I and Class II having reference to Clause (a) and Clause (b) of section 8 respectively are thus nominated relatives under the statute, but nonetheless are described as relatives. It can, therefore, be safely inferred that in the matter of specification of relatives, the present legislation is based and is not averse to recognise the relation that comes because of the marriage along with the relations that arise because of birth of family. Similarly, it treats the male and female heirs with evenhandedness and with a sense of obvious justice. Keeping in view this internal evidence of acceptance of principles of birth and marriage available in the enactment of Class I and Class II along with the provisions of section 8(a) and (b), it will not be unreasonable to understand the provisions of Clause (c) of section 8, which provides that when the heirs of Class I and Class II are not available, then the property of a male Hindu dying intestate devolves upon the agnates of the deceased, as also the provisions of Clause (d) which provides for similar result, namely, that failing agnates, the property devolves on the cognates of the deceased. The principles of birth and of marriage that go to make relational kinship run through and through the veins of these provisions. What is apparent in Class I and Class II does shed light on what is implicit in Class III having reference to Clause (c) of section 8, for the legislature was well aware of the relations that spring up because of the marriage in Hindu society. Only because the term "by blood" is capable of having restrictive meaning as "by birth", it will not be proper nor reasonable to attribute to the legislature an intent to exclude the female heirs who become related because of the marriage ties in a family. It is indeed difficult to conceive such a legislative situation, particularly in the context of the object of the Act itself. The obvious two sociological principles which go to make family as the social unit are the incident of birth and the incident of marriage which unite persons by bond. There may be other relative principles which have the sanction of law, like the modality of adoption, but, as far as the natural principle is concerned, birth is primary principle which is the concomitant result of a marriage of two heterogeneous beings. It is to these primary and basic principle that the law of succession apparently makes a reference to make a scheme for succession and there must be strong evidence to suggest that while interpreting we should exclude application of the same principle that gives rise to relations.
Equivalent Citation: 1980(82)BOMLR332, 1980MhLJ586
IN THE HIGH COURT OF BOMBAY
Letters Patent Appeal No. 46 of 1975
Decided On: 27.02.1979
Appellants: Nana Saheb Vishwasrao Deore
Vs.
Respondent: Parwatibai w/o Shankar Chavan and Anr.
Vs.
Respondent: Parwatibai w/o Shankar Chavan and Anr.
Hon'ble Judges/Coram:
B.A. Masodkar and D.N. Mehta, JJ.
B.A. Masodkar and D.N. Mehta, JJ.
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