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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

J U D G M E N T

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

with Annexe No.2/3/4 and Annexe No.2/3/5 situated in Survey No.199 at  Ranikhet

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 1/4th

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.