Under section 15 of the Hindu Succession Act, the property of a Hindu female dying intestate devolves first upon her sons and daughters, including children of pre-deceased sons or daughters, and the husband. In the absence of any son or daughter, the property devolves upon the heirs of the husband.

JUDGMENT :

The short question for determination in this appeal is, whether the property of a Hindu female dying intestate would, under clause (a) of sub-section (1) of section 15 of the Hindu Succession Act, devolve on her son or daughter from a previous husband, or upon the heirs of the husband under clause (b).

2. The facts, in brief are as follows :

The plaintiff, Gilli, brought a suit for declaration of title to, and possession of, the suit lands and house, alleging that the property constituted joint family property and, therefore, devolved on him by survivorship. That claim of the plaintiff was contested by the defendant, Mst. Bhagwania. She alleged that the property was the separate property of Kandhai. She further alleged that, upon the death of Kandhai in the year 1952, the property was inherited by his widow, Mst. Chaturia. The defendant is the daughter of Mst. Chaturia from her previous husband.

3. The Courts below have decreed the plaintiff’s claim, holding that the suit property was the separate property of Kandhai and, on his death in 1952, it was inherited by his widow Mst. Chaturia; that Mst. Chaturia, being possessed of the property, became the absolute owner thereof under section 14 of the Hindu Succession Act; and that, upon her death in 1958, the property devolved on the plaintiff. The findings of fact arrived at by the Courts below, being based on appreciation of evidence, are binding in second appeal.

4. The only question that arises in this appeal is as to who is the preferential heir under section 15 of the Hindu Succession Act. Sub-sections - (1) and (2) of the section, so far as relevant, read—

“15. (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; (b) secondly, upon the heirs of the husband; *** *** *** (2) Notwithstanding anything contained in sub-section (1),— (a) *** *** *** (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, but upon the heirs of the husband.”

5. In dealing with the question, K the learned Additional District Judge observes:

“According to section 14 of the Hindu Succession Act, Mst. Chaturia undoubtedly became absolute owner of the suit property; but it has been found that the defendant was not the daughter of Kandhai. According to section 15 (2) of the Hindu Succession Act, the property of a Hindu female dying intestate shall devolve upon the heirs of her husband, if she had inherited the property from her husband.”

6. The view taken by the learned Additional District Judge can hardly be supported. Clause (b) of sub-section (2) of section 15 of the Act comes into play when a Hindu female dies intestate, without leaving any son or daughter. The learned Judge overlooked the words: “in the absence of any son or daughter of the deceased”. The expression “the deceased” in the context means the female Hindu dying intestate. The law is succincly stated in Mulla’s Hindu Law, Fourteenth Edition, page 914. The expression ‘son’ used in Entry (a) has not been defined in the Act. It includes both a natural son and a son adopted in accordance with the law relating to adoption among Hindus in force at the time of the adoption. In case of a female intestate, who had remarried after the death of the husband or after divorce, her sons by different husbands would all be her natural sons and entitled to inherit the property left by the female Hindu, regardless of the source of the property. The rules relating to a ‘son’, as stated above, apply mutatis mutandis to the case of a daughter: (see Illustrations under Entry (a), p. 917).

7. I am fortified in my view by the decision of T