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B.C. Singh (D) By Lrs. vs J.M. Utarid (D) By Lrs. on 8 May, 2018

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6935 OF 2011

B.C. SINGH (D) BY LRS. … APPELLANTS

VERSUS

J.M. UTARID (D) BY LRS. … RESPONDENTS

JUDGMENT

S.ABDUL NAZEER, J.

1. This appeal by the appellants-plaintiff is directed against the judgment and

decree dated 22.08.2005 in Second Appeal No.31/2001 (Old No. 1510.1985)

passed by the High Court of Uttaranchal at Nainital.

2. Brief facts necessary for disposal of this appeal are narrated herein below.

3. Dr. B.C. Singh and his wife Dr. Stella Lillian Singh (‘Dr. S.L. Singh’ for

short) had purchased immovable property known as Capel Cottage No.2/3, along
Signature Not Verified

with Annexe No.2/3/4 and Annexe No.2/3/5 situated in Survey No.199 at Ranikhet
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2018.05.09
14:51:24 IST
Reason:

by deed of sale dated 11.2.1952. Dr. S.L. Singh died on 20.3.1976 leaving no issue.
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Dr. B.C. Singh and his deceased wife Dr. S.L. Singh were Christians. In the year

1968 Dr. S.L. Singh became acquainted with J.M. Utarid, and she invited him to

Ranikhet. J.M. Utarid came to Ranikhet in 1969 and stayed at the home of Dr.

B.C. Singh and his wife. During this period J.M. Utarid started living in Capel

Cottage Annexe No.2/3/5 after it was vacated by its previous tenant. After

sometime, Dr. B.C Singh asked J.M. Utarid and his children to vacate the annexe

but they failed to vacate the premises in question. Dr. B.C. Singh filed a suit for

eviction against J.M. Utarid. The suit was dismissed on 28.8.1978 as Dr. B.C.

Singh failed to prove the tenancy of Mr. J.M. Utarid. The revision filed against the

said order was also dismissed. Thereafter, Dr. B.C. Singh filed Civil Suit No.32 of

1980 against Mr. J.M. Utarid and his two sons for possession of the property and

for damages on the ground that they were the licensees in respect of the suit

property and that their licence had been terminated by a notice served on

4.10.1980.

4. The defendants filed the written statement asserting that the plaintiff is not

the sole owner of the property. It was contended that deceased Dr. S.L. Singh was

their relative. On her death, defendant No.1, a distant kindred, succeeded to 1/4 th

share in the entire property. Therefore, the plaintiff was not entitled for relief of

possession of the property nor was he entitled for any damages.
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5. The trial court dismissed the suit by its judgment and decree dated

24.11.1981. Dr. B.C. Singh challenged the said decree by filing Civil Appeal

No.21 of 1981 before the first Appellate Court. The First Appellate Court by its

judgment and decree dated 3.9.1985 allowed the appeal, set aside the judgment and

the decree of the trial court and the suit was decreed. This decree was carried in

appeal by the defendants in Second Appeal before the High Court. The High Court

by its judgment and decree dated 22.8.2005 reversed the judgment and decree of

the First Appellate Court. During the pendency of the appeal before the High

Court, Dr. B.C. Singh died and his legal representatives have been brought on

record. Similarly, the first defendant J.M. Utarid also died and his LRs. were

already on record.

6. We have heard learned counsel for the parties. The contention of the learned

counsel for the appellants-plaintiff is that neither J.M. Utarid nor his children (the

defendants in the suit) were the co-owners of the suit property and that the original

plaintiff, namely, Dr. B.C. Singh was the sole owner of the property. The

defendants were only licensees and that their licence had been terminated. It is

further contended that even if the defendants were related to Dr. S.L. Singh they

could not succeed to her share since Ida Utarid, the sister of Dr. S.L. Singh, was

alive. She was preferential heir as compared to the defendants. At best, first

defendant was a distant kindred as compared to Ida Utarid and was not entitled to
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succeed to the property. Though Ida Utarid was a foreign national there was no bar

for her to succeed to her share in the property of her deceased sister Dr. S.L. Singh.

7. On the other hand, learned counsel appearing for the respondents-defendants

submits that Ida Utarid, is not entitled to succeed to the estate of Dr. S.L. Singh as

she is a Pakistani national. The defendants being the kindred of deceased Dr. S.L.

Singh are entitled to 1/4th undivided share in the suit property. They are the co-

owners and not the licensees as contended by the plaintiff. Therefore, the High

Court has rightly dismissed the suit.

8. We have carefully considered the submissions of the learned counsel made

at the Bar and perused the materials placed on record.

9. Dr. S.L. Singh died on 20.3.1976 without leaving any issue. It is not

disputed that Ida Utarid is the real sister of Dr. S.L. Singh. According to the

admitted pedigree, M. Utarid had two sons, namely, Dr. M.B. Utarid and Nazir

Utarid. Nazir Utarid had two daughters, namely, Dr. S.L. Singh (wife of the

original plaintiff) and Ida Utarid. J.M. Utarid (defendant No.1) is the son of E.

Udarid and grandson of Dr. M.B. Utarid. Dr. S.L. Singh is admittedly an Indian

Christian. Therefore, the Indian Succession Act, 1925 (for short ‘the Act’) would

be applicable to the succession of the property left by her. This Act does not bar

the succession of property of any Indian Christian by a person who is not an Indian
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national. There is no prohibition for succession of the property in India by a

foreign national by inheritance.

10. Admittedly, the immovable property known as Capel Cottage was jointly

purchased by the original plaintiff Dr. B.C. Singh and his wife Dr. S.L. Singh.

Therefore, each of them hold equal share in the entire property. According to the

defendants, first defendant is the kindred of deceased Dr. S.L. Singh and has

become the co-owner after her death. Hence, he cannot be evicted from the suit

property. The subject matter of the suit is Annexe No.2/3/5 of Capel Cottage.

11. Section 24 defines kindred or consanguinity, which is as under:-

“24. Kindred or consanguinity.-Kindred or
consanguinity is the connection or relation of persons
descended from the same stock or common ancestor.”

12. Sections 25 and 26 classify lineal consanguinity and collateral
consanguinity, which is as under:

“25. Lineal consanguinity.- (1) Lineal consanguinity is
that which subsists between two persons, one of whom is
descended in a direct line from the other, as between a
man and his father, grandfather and great-grandfather,
and so upwards in the direct ascending line, or between a
man and his son, grandson, great-grandson and so
downwards in direct descending line.
(2) Every generation constitutes a degree, either
ascending or descending.

(3) A person’s father is related to him in the first
degree, and so likewise is his son; his grandfather and
grandson in the second degree; his great-grandfather and
great-grandson in the third degree, and so on.”
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“26. Collateral consanguinity.- (1) Collateral
consanguinity is that which subsists between two
persons who are descended from the same stock or
ancestor, but neither of whom is descended in a direct
line from the other.

(2) For the purpose of ascertaining in what degree of
kindred any collateral relative stands to a person
deceased, it is necessary to reckon upwards from the
person deceased to the common stock and then
downwards to the collateral relative, a degree being
allowed for each person, both ascending and
descending.”

Thus lineal consanguinity is that between two persons connected in one

straight line whether descending or ascending, drawn from the propositus.

Collateral consanguinity is between two persons connected by a line which is not a

straight line.

13. Part V of the Act lays down the rules of succession to a person dying

intestate. However, this Part does not apply to the property of any Hindu,

Muhammedan, Buddhist, Sikh or Jaina which is evident from Section 29 of the

Act. Chapter II of this Part lays down the rules of succession in cases of intestates

other than Parsis. Section 32 states that the property of an intestate devolves upon

wife or husband, or upon those who are of the kindred of the deceased in the order

and according to the rules contained in the said Chapter. Section 33(b) is relevant

for the purpose, which is as under:-

“33. Where intestate has left widow and lineal
descendants, or widow and kindred only, or widow
and no kindred. -Where the intestate has left a widow—
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(a) ……..;

(b) [save as provided by section 33A], if he has left no
lineal descendant, but has left persons who are of kindred
to him, one-half of his property shall belong to his
widow, and the other half shall go to those who are
kindred to him, in the order and according to the rules
hereinafter contained;

(c) ………”

14. Section 35 states that a husband surviving his wife has the same rights in

respect of her property, if she dies intestate, as a widow has in respect of her

husband’s property, if he dies intestate.

15. In the instant case, the intestate has left behind her husband and kindred.

There are no lineal descendants as defined under Section 25. Sections 42 to 48 lay

down the rules of distribution of property of an intestate where the intestate had

died without leaving children or remoter lineal descendants and the rules of

distribution are in the order of priority.

16. Dr. B.C Singh has already half share in the property by virtue of the sale

deed dated 11.2.1952. He being the husband of Dr. S.L. Singh would succeed half

of the share in the property held by her as provided under Section 33(b) read with

Section 35 of the Act. Thus, he holds 3/4th share in the entire property. Now the

question is what should happen to the remaining 1/4th share in the property?

17. Section 47 provides for devolution of the property where intestate has left

neither lineal descendant, nor father, nor mother. The said Section is as under:-
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“47. Where intestate has left neither lineal
descendant, nor father, nor mother. – Where the
intestate has left neither lineal descendant, nor father, nor
mother, the property shall be divided equally between his
brothers and sisters and the child or children of such of
them as may have died before him, such children (if more
than one) taking in equal shares only the shares which
their respective parents would have taken if living at the
intestate’s death.

18. It is clear from this provision that in case the intestate has not left a lineal

descendant, nor father, nor mother, the property shall be divided equally between

his brothers and sisters and the child or children of such of them as may have died

before him, such children taking equal shares only the shares which their

respective parents would have taken if leaving at the intestate death. In the instant

case, Dr. S.L. Singh has left behind her sister, Ida Utarid. She has not left behind

any lineal descendant. Ida Utarid was the only near kindred and preferential heir

of the intestate and she would have succeeded to 1/4th share in the property.

19. It is only when intestate has left neither lineal descendant, nor parent, nor

brother and nor sister, the property has to be divided among those relatives of the

intestate who are in the nearest degree of kindred to him. This is clear from

Section 48, which is as under:-

“48. Where intestate has left neither lineal
descendant, nor parent, nor brother, nor sister. –
Where the intestate has left neither lineal descendant, nor
parent, nor brother, nor sister, his property shall be
divided equally among those of his relatives who are in
the nearest degree of kindred to him.”
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20. The rules of distribution are in the order of priority as contained in Sections

42 to 48. It is clear from scheme of the Act that when intestate has not left behind

any lineal descendant and has only kindred, the nearer kindred excludes the

distant kindred. The first defendant being a distant kindred is not entitled to

succeed any share in the property since the intestate has left behind her real sister.

21. We find no merit in the contention of the respondents that they are entitled to

succeed 1/4th share in the property. We, therefore, allow this appeal, set aside the

judgment and decree of the High Court and restore the judgment of the First

Appellate Court. There will be no orders as to costs.

……………………………J.

(N.V. RAMANA)

……………………………J.

(S. ABDUL NAZEER)
New Delhi;

May 8, 2018.

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