Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
PETITIONER:
SHAKUNTALA SAWHNEY
Vs.
RESPONDENT:
KAUSHALYA SAWHNEY
DATE OF JUDGMENT04/04/1979
BENCH:
ACT:
Procedure-Duty of Subordinate Courts in dealing with family
disputes.
HEADNOTE:
The purpose of law and justice (Dharma) is promotion of
cohesion and not production of fission. A judgment often
possesses a sublime essence and a humdrum component. The
sublime element consists in the optimistic endeavour to
bring parties together so that the litigation may not cut
them as under, especially when they are blood relations like
sisters. The present appeal in its happy conclusion, holds
out the higher lesson that hate and fight are dissolved by
basic human fellowship, even after bitter litigative
struggle, if the Bench and the Bar pursue consensual justice
and bring into play conciliatory processes and successfully
persuade the parties to see reason and right beyond bare
law. If the effort succeeds, the court and counsel derive
spiritual fulfilment and get satisfaction. The finest hour
of justice arrives propitiously when parties, despite
falling apart, bury the hatchet and weave a sense of
fellowship or union. [640 D]
The present case is not merely a just adjustment of a
bitter litigation but a path-finder for the subordinate
courts in dealing with family or like disputes. [643 B]
The text and the context and the application of
traditional rules of statutory interpretation, in a given
case, might leave the position in an unsatisfactory dilemma
of dual import. Even an equitable approach may not
necessarily help reach a just solution because equity shifts
as the situation varies. Contradictory positions taken by
different High Courts add to the difficulty and result in
the deleterious uncertainty of the law. The Supreme Court
may resolve the conflict by exercising its preference guided
by the language and the milieu and following the customary
canons of statutory interpretation. While its decision will
be binding on account of Art. 141 of the Constitution it may
still be fallible because the intendment of Parliament is
best brought out by legislative clarification in some cases.
[640 H]
The appellant and the respondent were step-sisters-
daughters of a common father but of different mothers. The
father who owned vast properties had died before the coming
into force of the Hindu Succession Act 1956. The
respondent’s mother who inherited her husband’s estate died
after the coming into force of the 1956 Act. The High Court
dismissed the appellant’s claim for a half share in the
properties under s. 15(1)(a) of the Act. The specific point
of claim, whether a son and daughter in the setting of s.
15(1)(a) of the Act, includes step-son and step-daughter or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
embraces only the son and daughter of the deceased female
propositus, has escaped the Parliament’s attention while
passing the legislation.
[At the Court’s suggestion the parties came to a
compromise assisted by counsel on both sides.]
640
Tulzapurkar, J.
Parliament should clarify its intention regarding s.
15(1)(a) of the Act.
^
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 348 of
1977.
Appeal by special leave from the Judgment and Order
dated 21-9-1976 of the Punjab & Haryana High Court in
Letters Patent Appeal No. 89/76.
W. C. Chopra for the appellant.
M. L. Varma for respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-A judgment often possesses a sublime
essence and a humdrum component. The appeal before us, in
its happy conclusion, holds out the higher lesson that hate
and fight are dissolved by basic human fellowship, even
after bitter litigative struggle, if the Bench and the Bar
pursue consensual justice, and bring into play conciliatory
processes, and successfully persuade the parties to see
reason and right beyond bare law. If the effort succeeds, as
it has in this case, court and counsel derive spiritual
fulfilment and get satisfaction.
Two sisters, apparently of the affluent bracket, with a
common father but different mothers, became estranged when
one (the appellant) claimed a half share in the estate of
the father, on whose death before 1956, the respondent’s
mother inherited her husband’s estate but died after 1956,
possessed of her husband’s assets and her own. When
intestate succession to her opened the plaintiff-appellant
claimed a half share therein, founded on s. 15(1)(a) of the
Hindu Succession Act (the Act, for short). The High Court
negatived the right to a share as an heir, and, in doing so,
preferred the interpretation of the provision adopted by the
then Mysore High Court (AIR 1962 Mysore 160) as against the
meaning attached to the provision by the Allahabad High
Court (1968 Allahabad Law Journal 488). In fact, a plurality
of decisions has been brought to our notice indicating a
plain conflict. Interpretation is sometimes a projection of
judicial inclination to do justice.
The question of law canvassed before us turns on the
meaning of "son" and "daughter" in the setting of s.
15(1)(a) of the Act. Do the expressions include step-son and
step-daughter or embrace only the son and daughter of the
deceased female propositus ? The text and the context and
the application of traditional rules of statutory
interpretation leave the position in an unsatisfactory
dilemma of dual import. Even an equitable approach may not
necessarily help reach a just solution, because equity
shifts as the situation varies, as illustra-
641
tions presented to us convinced us. Thus, the problem is a
little tricky and may well arise frequently. Contradictory
positions already taken by different High Courts add to the
difficulty and result in the deleterious uncertainty of the
law which may well incite, as it has done here, close
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
relations to quarrel over property. Blood may be thicker
than water, but wealth breaks all relations on a word of
material value sets. The Supreme Court may, when the High
Courts disagree, resolve the logomachic conflict by
exercising its preference guided by the language and the
milieu and following the customary canons of statutory
interpretation. While its decision will be binding on
account of Article 141 of the Constitution, it may still be
fallible because the intendment of Parliament is best
brought out by legislative clarification. In the present
instance, we have a hunch that the specific point of claim
by stepsons and step-daughters to inherit to the estate of a
deceased female has escaped Parliament’s attention while
fashioning the legislation. This is not surprising when we
appreciate the push and pressure, hurry and worry of law-
making modalities. In such a situation, when a sharp
conflict has shown up in the rulings of courts, the matter
should not be left in doubt or to forensic-linguistic
exercises but must be settled by legislative action on the
part of Parliament, making explicit its policy on this
branch of the Hindu Succession Act. Inaction leads to more
litigation, speculation and compulsion for judicial
legislation by the Supreme Court. Drafting lapses are
understandable but when differences of interpretation come
into the open, delay in correctional parliamentary
performance is fraught with negative litigative potential.
We are hopeful that the Indian draftsmen will disprove the
old English jingle:
I’am the parliamentary draftsman
I compose the country’s laws
And of half the litigation
I’am undoubtedly the cause.
The sublime element which we adverted to in the
beginning consists in the optimistic endeavour to bring
parties together so that the litigation may not cut them
asunder, especially when they are sisters. The purpose of
law and justice (dharma) is promotion of cohesion and not
production of fission. From this angle, as the arguments
proceeded and the legal tempers flared up, we suggested that
instead of escalating estrangement the parties may as well
compose themselves and their quarrels and re-establish their
sisterly relations making a somewhat amicable adjustment of
the lis before us. Viewing the case from this perspective of
tranquillity versus turbulence, but making it perfectly
642
plain that suggestions from the court towards this end will
not affect its unbiased adjudicatory duty in case it became
necessary, we ventured tentative solutions. Counsel took up
the suggestion in the proper spirit and we must record our
admiration for the strenuous effort made by the young lawyer
Shri M. L. Varma who did his best and successfully persuaded
his client who had won in the High Court to come down to a
compromise. We need hardly say that such a seasoned and
senior counsel like Shri Lal Narain Sinha could be counted
upon to aid in the process, and he did. The finest hour of
justice arrives propitiously when parties, despite falling
apart, bury the hatchet and weave a sense of fellowship or
reunion. In the present case, counsel today put in a joint
statement(1) signed by the parties setting down the terms on
which they have agreed. We consider it a success of the
finer human spirit over its baser tendency for conflict.
Now we come to the humdrum part of the case. According
to the compromise some landed properties are to be made over
to the appellant. Some cash is also to be paid to the
appellant by the respondent. The discretion to fix the sum
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
has been left by the parties to us. We direct that the
respondent shall pay a sum of Rs. 75,000/- to the appellant
within two weeks of the attachment of the moneys by the
trial court being withdrawn. The plaintiff/appellant
undertakes that she will get the attachment withdrawn and we
direct her to do so. We make it further clear that this
withdrawal of the attachment is to facilitate the making of
the payment of Rs. 75,000/- from out of the sum now lying in
bank deposit. We also direct that landed property worth Rs.
25,000/- will in addition be made over to the appellant from
out of the suit property. The further direction must justly
follow-and we make-that all the rents due from the
properties allotted to the appellant under the joint
statement prior to this date and subsequent to this date
shall be collectible by the appellant. If they have already
been deposited in court, they will be withdrawn by the
appellant. The actual allocation of the lands under the
joint statement will be made by Mr. Prem Nath Handa within
two months from today. Both sides agree on Shri Handa being
impartial and competent to make the said allotment. His
allotment once made will not be challengeable. Shri Handa
pursuant to this direction will make the allocation and put
in a statement to that effect in the trial court and that
statement will be deemed to be part of this decree.
643
We need hardly mention-it is so obvious-that the land
that remains will belong entirely to the respondent and
there will be no more claims from the appellant on the
respondent in regard to the estate of her step-mother, or in
respect of its income or otherwise.
Before we part with the case we should like to
emphasise that having regard to the merits of the claim,
this is not merely a just adjustment of a bitter litigation
but a path-finder for the subordinate courts in dealing with
family or like disputes. Indeed, we have had to take the
lead in giving shape to the settlement as it has finally
emerged. Counsel on both sides have also, statesman-like,
assisted in producing the settlement. We command this
example to the judiciary and to the Bar and reinforce it
with what Gandhiji has recorded in his autobiography:
"I have leant the true practice of law. I had
learnt to find out the better side of human nature and
to enter men’s hearts. I realised that the true
function of a lawyer was to unite parties driven
asunder. The lesson was so indelibly burnt into me that
a large part of my time during the twenty years of my
practice as a lawyer was occupied in bringing about
private compromises of hundreds of cases. I lost
nothing, thereby-not even money, certainly not my
soul."
We allow the appeal in part but entirely in terms of
the compromise which we consider clearly reasonable and
just. There will be no order as to costs.
TULZAPURKAR, J.-Decree in terms of compromise without
costs. Parliament should clarify its intention regarding s.
15(1) (a).
P.B.R. Appeal allowed in part.
644