IMPORTANT POINT
Under Section 253 of the Quanoon Mal Riyasat Gwalior, Samvat 1983 sister s son is not entitled to succession in preference over the descendants of the great grand father.

Headnote:(i) Quanoon Mal Riyasat Gwalior, Samvat 1983-Section 253-Sister s son, whether entitled to claim succession?-Nearest blood relation- Nearest blood relations are circumscribed by limitation of three generations from father s side-Sister s sons not fall within definition of nearest relations-Sister s son not entitled to succession in preference over descendants of great grand father-Interpretation applicable prospectively-Settled succession cannot be reopened.
       Clause (9) of Section 253 does not only mention nearest blood relation as a last category in the order of succession. The nearest blood relation has been mentioned by way of illustration in genealogical tree, Appendix-3, who are within three generations from father or grand father or great grand father. The nearest blood relations are, therefore, circumscribed by the limitation of three generations from father s side. The appellants are descendants of great grand father of Harbilas, namely, Mohan. In Section 253, only daughter is mentioned in one of category in order of succession. The sister or sister s sons are nowhere mentioned. The sister or sister s son do not fall within three generations from father or grand father or great grand father. It is not a case of any close or nearest blood relations as such falling within the meaning of clause (9). It is only those nearest blood relations who fall in clause (9) who would come in order of succession. It appears that on marriage, sister goes out of family and has thus not being shown in the family tree of the deceased. The daughter was added in 1943 but not the sister or her sons. In the absence of mention of sister or sister s son in clause (9) or Appendix-3, the question of their being entitled to succession in preference over the descendants of the great grand father does not arise. The descendants of great grand father clearly fall within three generations as contemplated by Appendix-3. It is nobody s case that prior to amendment of 1943, sister or sister s son were included in clause (9) or in Appendix-3 but the daughter of deceased was not included. Therefore, inclusion of daughter of the deceased in 1943 was deliberate and by the same token the omission of sister or her sons was also deliberate. If so, it is not possible to include them in the said provision now by interpretation of clause (9) of Section 253 read with Appendix-3. (Para 6)
       Learned counsel for the respondents also sought to bring in the concept of stare decisis and submitted that the interpretation sought to be placed on the aforesaid provision by the High Court has stood the stand of time over number of years and a different interpretation now would result in unsettling property rights settled long ago. The said principle has no applicability in the present case. No other decision of the High Court was brought to our notice placing the similar interpretation on the provisions in question. The sister or sister s son cannot be brought in order of succession by applying the principle of stare decisis when they are clearly excluded. However, we make it clear that the interpretation of clause (9) of Section 253 of Special Legislation placed by us would not entitle anyone to reopen the issue of succession which stand already settled. This interpretation would be applicable prospectively. (Para 7)
       (ii) Stare decisis-Application of principles. (Para 7)

JUDGMENT

Y.K. Sabharwal, J.-The question for determination in this appeal is whether sister s son or descendants of father s father s father are entitled to inherent the property of the deceased. It is not in dispute that the right of succession in respect of the agricultural land in question is governed by a special legislation of the then Gwalior State, namely, Quanoon Mal Riyasat Gwalior, Samvat 1983 (hereinafter referred to as Special Legislation ).

2. On factual matrix, there is no dispute between the parties. The subject matter of appeal is land in question left behind by one Harbilas. Harbilas died in the year 1948. Who out of the aforesaid two categories have the right of succession to his land, is the question? The appellants fall in the category of descendants of great grand father of Harbilas. Appellants are sons of Hansraj. Murli was father of Hansraj and Mohan was father of Murli. Harbilas was son of Bhagwant. Ghanshyam was father of Bhagwant. Murli and Ghanshyam were brothers, both being sons of Mohan. Mohan was, thus, great grand father of Harbilas as also of appellants. The other defendants in the suit also belong to different branches of great grand father, Mohan. This respondents are Harbilas s sister s sons. After the death of Harbilas, his sister s sons having failed before the Revenue Courts in their claim for succession, filed the suit which has given rise to this appeal, inter alia, seeking a declaration as owners of the land left behind by Harbilas and for restoration of possession thereof from the defendants being descendants of great grand father of Harbilas. The suit for declaration and restoration of possession has been decreed by the trial Court. The judgment and decree of the trial Court has been affirmed in the first appeal as also by the High Court in the second appeal. Under these circumstances, the defendants in the suit are in appeal before us.

3. The only question is about the interpretation of part of Section 253 of the aforesaid Special Legislation. At the time of death of Harbilas, his sister Kokila was alive. The plaintiffs in the suit, namely, Pooja Ram and Mani Ram are sons of Kokila. Smt. Kokila died after the death of Harbilas. All the defendants in the suit, as stated above, belong to several branches of descendants of great grand father of Harbilas. The controversy relates to interpretation of clause (9) of Section 253 of the Special Legislation read with Appendix-3 appended thereto. Admittedly, none of the claimants fall within clauses 1 to 8 of Section 253. Each of the two categories of claimants claim to fall within clause (9). The Special Legislation is in Hindi. Counsel for the parties admit that the correct English translation of Section 253 and Appendix-3 appended thereto reads as under :-

"253. Right to Skitul Malkiyat tenants and Maurusi tenants is heritable and order of succession to these tenants shall be as under :-

(1) Natural offspring seriatim i.e. first the son, then grand-son and in his absence great grand son.

(2) Widow of deceased during her life time or so long as she does not remarry.

(3) father of deceased.

(4) mother of deceased.

(5) Son s widow, who lived jointly with deceased, during her life time or so long as she does not marry.

(6) daughter of deceased.

(7) brother of deceased if born of the same father as was the deceased.

(8) daughter s son.

(9) nearest blood relation, in the abovesaid serial order, as shown by way of illustration in genealogical tree appendix-3, who are within three generations from father or grand father, or great grand father."

APPENDIX-3

Great grand mother (2) (19) Great Grand father __

Widow ( )

(21)

Grand mother (14) (13) Grand father __

Widow ( ) (16) Uncle

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2000 Supreme(SC) 1376

IMPORTANT POINTUnder Section 253 of the Quanoon Mal Riyasat Gwalior, Samvat 1983 sister s son is not entitled to succession in preference over the descendants of the great grand father.

IMPORTANT POINT
Under Section 253 of the Quanoon Mal Riyasat Gwalior, Samvat 1983 sister s son is not entitled to succession in preference over the descendants of the great grand father.